Director of Public Prosecutions v Burns
[2021] VCC 1134
•11 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION CR-21-00216
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STUART BURNS |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June 2021 | |
DATE OF SENTENCE: | 11 August 2021 | |
CASE MAY BE CITED AS: | DPP v Burns | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1134 - - - | |
Catchwords: Criminal law sentence
Catchwords: Plea of guilty to one charge each of aggravated burglary, recklessly causing injury, common assault, making a threat to kill, criminal damage; 2 charges assaulting an emergency worker on duty - one extensive incident involving former partner and adult son with intellectual disability – victims very fearful - assaulted police at police station – combined sentence insufficient – 42 year old single man – extensive criminal history – long standing drug abuse and alcohol – disruptive childhood - little regard for Court orders – no evidence of remorse – prospects for rehabilitation less than reasonable.
Cases cited: DPP v Meyers [2014] VSCA 314; DPP v Arvanitidis (2008) 202 A Crim R 300; DPP v Lees [2021] VCC 231; DPP v Hayward [2002] VCC 220;
DPP v Seeman [2019] VCC 231
Sentence: Total effective sentence 3 years 3 months with non parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Hamnett | OPP |
| For the Accused | Mr D. McGlone | Adrian Paull Criminal Lawyers |
HER HONOUR:
1 Stuart Burns, you have pleaded guilty to one charge of aggravated burglary, one charge of recklessly causing injury, one charge of common assault, one charge of making a threat to kill, one charge of criminal damage and two charges of assaulting an emergency worker on duty.
2 In these sentencing remarks I will set out the details of the offending and then discuss the gravity of the offending. Then I will summarise your personal background and circumstances and finally turn to a discussion of the appropriate sentence.
THE OFFENDING
3 All of the charges arise from the same incident on 27 April 2020 and apart from the last two charges, the victims of your crimes were your former partner and her son.
4 You had had an on and off relationship with the complainant but you had separated some three and a half years before the offending. Her son is an adult but has an intellectual disability. In the past the complainant has had an intervention order against you but there was no such order in place at the time.
5 In the two days before the offending she sent text messages to you from her son's phone saying she did not want you at her property. On Sunday 26 April she sent you a message saying she did not want any contact with you, that you were not welcome at the house and she wanted nothing to do with you.
6 At 10 am on Monday morning, 27 April, you went to her house and knocked on the door. Her son woke his mother and told her this but she reminded him that you had been told not to come to the house and they stayed quiet and did not answer the door.
7 Shortly afterwards you jumped over the side gate and walked to the back door. You became emotional and told the complainant that you wanted to talk to her, telling her you loved her, accusing her of sleeping with her son and claimed she was with the Bandidos Motorbike Club.
8 Her son told you to leave and you refused. You had your foot in the doorway and you punched the complainant on the side of her head above her eye, causing pain and shock. As you tried to get in the door you grabbed hold of her arms with both hands causing bruising and scratches. That is Charge 2, recklessly causing injury.
9 You then pushed past the complainant and punched her son to the eye causing a lump and you scratched his arm causing redness. That is Charge 3, common assault.
10 You threatened to kill him and he believed the threat and felt in fear for his life. That is Charge 4, making a threat to kill.
11 The victims managed to push you outside and lock the door. They then called the police. You smashed up a barbecue which the complainant had recently bought for $50. She then heard her bedroom window being smashed by you. This is Charge 1, aggravated burglary with intent to damage property.
12 Having smashed the window with your hand you then climbed into the bedroom through the broken window. The complainant tried to enter the room and when she managed to do so she found your legs were blocking the door from opening. She told you to get out of the house. You were smoking a bong and rambling incoherently about her connections with the Bandidos and her relationship with her son. She again called Triple 0 requesting police assistance. Police arrived shortly afterwards and arrested you in the bedroom in which blood could be seen in various places from your injuries caused when you broke the window.
13 You were taken to Geelong Police Station in an intoxicated state and placed in a cell. Just before 12.30 pm two officers went to the cell to do a welfare check on you and you asked for a blanket. When this request was refused you began to abuse and swear at the officers calling them 'fucking dogs'. You spat saliva through the open flap which made contact with Constable Michelle McGennisken, striking her on the front of her shirt, both sleeves and her right forearm. That is Charge 6.
14 That afternoon you deliberately urinated on the floor of the cell before squatting down and attempting to defecate on the floor. You used wet toilet paper to cover the camera in the cell making it impossible for police custody staff to monitor your welfare.
15 Sergeant Constance and Constable Michael Varker attended the cell and opened the flap on the cell door to talk to you. You ran to the flap and spat saliva at Constable Varker who had to dodge the saliva before deploying OC foam to subdue you. That is Charge 7.
16 The complainant was seen in hospital the following day and an examination revealed bruising on both arms and on the side of her forehead, a large bruise on her thigh and tender painful right distal forearm and wrist. This was X-rayed and no fracture was found. You also caused psychological distress to her and to her son.
17 That is the evidence from the victim impact statement the complainant provided, in which she stated that her suffering was both physical and humiliating, and had an emotional and mental impact on her. She said she often woke at night with visions of the attack running through her head. Her son's sleep was also affected and neither of them wanted to leave the house. She said that you knew what you were doing and you have shown no remorse.
OBJECTIVE GRAVITY
18 The objective gravity of the offending was the chief focus of the submissions at the plea hearing. While both parties agreed that a sentence of imprisonment was appropriate, the defence submission was for a combination sentence; that is a combination of imprisonment with a Community Correction Order. By contrast the prosecution's submission relied on a number of cases with some similarities to this case, where the sentences imposed were higher than that available in a combination sentence.
19 Aggravated burglary is a serious offence evident by the maximum penalty of 25 years' imprisonment. The maximum penalty for recklessly causing injury, common assault and assaulting an emergency worker on duty is five years. For making a threat to kill and for criminal damage it is 10 years.
20 The prosecution has submitted that any involvement of domestic violence renders the crime more serious and relied on the decision in DPP v Meyers[1]where the Court of Appeal made that point.
[1] DPP v Meyers [2014] VSCA 314
21 The defence relied on the same decision to show that the aggravated burglary that you committed was less serious because you were not carrying a weapon, you were alone, it happened during daylight hours and the window you broke to gain entry was at the front of the house and therefore not camouflaged.
22 Your entry through the broken window occurred after you had assaulted the victims moments earlier and in the context of the complainant’s very recent admonitions to you not to come to the house. Therefore she had good reason to be very fearful of you after your entry.
23 In Meyers, the Court of Appeal stated and I quote:
'Violence of this kind is alarmingly widespread and extremely harmful. The statistics about the incidents of women being killed or seriously injured by vengeful former partners are truly shocking.'[2]
[2] Loc at [45]
24 This approach to assessing the seriousness of the crime places your attack on your former partner and her son at a high level. Your assaults upon the two police officers were aggravated by the fact that they were trying to carry out their duties at the time[3].
[3] DPP v Arvanitidis (2008) 202 A Crim R 300
25 An analysis of several cases dealing with various types of aggravated burglary, including domestic violence in particular, is useful. The circumstances in these cases were often similar, with forced entry by men into the homes of former partners, usually inflicting significant fear and physical injury upon the victims, demonstrating little or no remorse or insight into their behaviour. In every case the offender knew that he was not wanted at the premises and he flouted this in anger and with violence.
26 However most, if not all, of these cases differ from the circumstance of this case in that the injuries inflicted in those cases were more severe and the terror inflicted on those victims was more intense and prolonged.
27 This is reflected in the penalties imposed. For example, in DPP v Lees,[4] a decision of a judge of this court, two extremely violent attacks on a former partner resulted in a total effective sentence of six years and three months, with a non-parole period of three years and nine months. This sentence is very close to that imposed in DPP v Hayward[5], also a County Court sentence, where the young offender from a very deprived background was sentenced similarly. In DPP v Seeman[6] a sentence of seven years with a non-parole period of four years and 10 months was for a terrifying forced entry to the victim's house and a sustained attack on the victim using pieces of timber in the presence of a very young child. This was after a trial, so there could be no discount for a guilty plea.
[4] DPP v Lees [2021]VCC 231
[5] DPP v Hayward [2020] VCC 220
[6] DPP v Seeman [2019] VCC 231
28 The offending at the house occurred during an extensive incident, albeit over a fairly short period of time. It was the type of serious offending dealt with in cases where significant prison terms were imposed and where the courts have repeatedly expressed stern condemnation of the unfortunate prevalence of family violence offending.
29 Men, and it is usually men, who offend in this way will be dealt with harshly by the courts in order to punish them, to deter them specifically from such behaviour in the future and in an attempt to protect the community from them. Men who harbour anger and resentment and frustration over difficulties in ending intimate relationships must be deterred from violence of any sort towards their partners or former partners.
30 I have set out at some length this analysis of the gravity of your offending by considering its context and by comparing it with other cases, leading to the conclusion that it is relatively high in the level of seriousness and that both general and specific deterrence are important aspects of sentencing in this case.
PERSONAL BACKGROUND AND CIRCUMSTANCES
31 I will now turn to your own circumstances and background, Mr Burns. You are a 42 year old single man with an extensive criminal history, even taking account of repeated breaches of community orders which Mr McGlone, on your behalf, submitted make your history look more extensive than it is.
32 You have convictions for various forms of violence, including family violence offending, and for contravening intervention orders. Other convictions are consistent with your longstanding drug use.
33 Your parents separated when you were very young and you remained with your mother, but did not have a good relationship with her, nor particularly with your father who beat you as a child when he was drunk. You had behavioural problems at school and were eventually asked to leave in Year 9 having been to five different secondary schools.
34 From the age of 13 or 14 you lived more or less independently, living with foster families at first and then in a hostel, which you preferred. You worked in various jobs and became a qualified motor mechanic in 2000. However, you have not worked since 2017.
35 You had a long term relationship which produced a son who is now 21 but you have no contact with him.
36 Drug abuse has been a problem for you since you started using cannabis at the age of 13 although that ended when your son was born, only to resume at the end of your relationship. You then used a wide variety of drugs including alcohol, leading to psychiatric intervention and a number of hospital admissions, and a diagnosis of paranoid schizophrenia. This is something you dispute, attributing the diagnosis to drug use and indeed there seems to be little, if any, evidence of mental illness as such. You have continued to use cannabis and alcohol regularly.
37 Your relationship with the complainant commenced when you were 28 and continued for some three or four years. In 2017, you went to Queensland and bought a property there intending it as a home for you both. It was significantly damaged in bushfires in 2018 and your other home in Geelong was also damaged by fire in suspicious circumstances. Both properties have been repossessed since you were taken into custody.
38 Your work tools are in storage and you fear losing those if you are held in custody for any prolonged time with no family or friends to help you recover them.
39 Your plea of guilty means you are entitled to a discount on your sentence for having assisted to facilitate the criminal justice system particularly at a time when the pandemic has caused large backlogs in cases waiting to be heard. A plea of guilty might be accepted as an indication of remorse but there is no evidence of remorse. Indeed you have little or no insight into your offending.
40 According to what you told the Corrections officer when you were assessed recently as to your suitability for a correction order you denied that the complainant did not want you at her house and denied having received any text messages from her telling you that. You explain, even perhaps try to justify, what happened by your drunkenness at the time and blame the victims for starting an argument when you broke into the house. You minimised each of your actions, denied assaulting the complainant and denied she had any resulting injuries.
41 Between 2008 and 2015 you have been subject to several community orders and it was only the early community based orders that you completed. Since 2011 you have breached Community Correction Orders by both further offending and non-compliance despite demonstrating some ability to perform community work. Over the years you have also demonstrated little regard for court orders including family violence intervention orders. Your offending at the police station was evidence of your disregard for those in authority.
42 I am not persuaded that there is anything to indicate reasonable chances for rehabilitation despite some indications from conversations with therapists on occasions, that you do have the beginnings of some insight into your offending and how to prevent it. It is not sufficient to persuade me that you would succeed with a corrections order.
43 You were assessed as unsuitable for a further corrections order and the reasons are set out very comprehensively in the report dated 22 July 2021.
(Technical malfunction)
44 HER HONOUR: Mr Burns, we lost the connection for a time there. Can you hear me now?
45 OFFENDER: Yeah. Yeah, I can hear ya.
46 HER HONOUR: Good. Thank you I will just go back to the previous paragraph. I said this:
'I am not persuaded that there is anything to indicate reasonable chances for rehabilitation despite some indications from conversations with therapists on occasions that you do have the beginnings of some insight into your offending and what to do about preventing it. It is not sufficient to persuade me that you would succeed with a corrections order.'
47 You were assessed as unsuitable for a further corrections order and the reasons are set out very comprehensively in the report dated 22 July 2021. Accordingly, a combination sentence must be ruled out.
48 You are sentenced to the following terms of imprisonment:
For Charge 1, aggravated burglary, two years.
For Charge 2, recklessly causing injury, one year.
For Charge 3, common assault, six months.
For Charge 4, making a threat to kill, nine months.
For Charge 5, criminal damage, three months.
For each of Charges 6 and 7, assaulting an emergency worker on duty, one year.
The sentence for Charge 1 will be the base sentence for purposes of cumulation.
I order that six months of the sentence for Charge 2, three months of the sentence for Charge 4 and six months of the sentence for Charge 6 be served in cumulation upon the base sentence. This results in a total effective sentence of three years and three months.
I order that you serve two years before being eligible for parole.
49 You have been in custody for 287 days by my calculation, not including today. I declare that time to be reckoned as already served and I shall cause it to be noted on the court record.
50 If you had pleaded not guilty I would have sentenced you to four years' imprisonment with a non-parole period of three years.
51 The prosecution seeks a forfeiture order in respect of a backpack and I make that order subject to any objection. Is that consented to, Mr McGlone?
52 MR McGLONE: It's not opposed, Your Honour.
53 HER HONOUR: Thank you.
(Discussion ensued re pre sentence detention.
Pre sentence detention of 287 days confirmed)
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