Director of Public Prosecutions v Burns
[2019] VCC 1865
•13 November 2019
| IN THE COUNTY COURT OF VICTORIA AT wodonga | Revised (Not) Restricted Suitable for Publication |
Case No. CR-19-00468
CR-19-00644
CR-19-00256
CR-19-00244
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARRY ROBERT BURNS ERIC KEVIN CHEW KAYNE NICHOLAS PHILLIPS |
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JUDGE: | HIS HONOUR C J RYAN |
WHERE HELD: | Wodonga |
DATE OF HEARING: | 24 October 2019 |
DATE OF SENTENCE: | 13 November 2019 |
CASE MAY BE CITED AS: | DPP v Burns & Ors |
MEDIUM NEUTRAL CITATION: | [2019] VCC |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Aggravated burglary – Assault – Co-accused – Plea of guilty
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence: BURNS: 3 years and 6 months imprisonment; Non-parole period of 18 months imprisonment; 209 days pre-sentence detention; Forensic sample order; 6AAA declaration: 6 years imprisonment with a non-parole period of 4 years imprisonment. CHEW: 4 years and 6 months imprisonment; Non-parole period of 2 years and 6 months imprisonment; 446 days pre-sentence detention; Forensic sample order; 6AAA declaration: 7 years imprisonment with a non-parole period of 4 years and 6 months imprisonment. PHILLIPS: 4 years imprisonment; Non-parole period of 2 years imprisonment; 437 days pre-sentence detention; Forensic sample order; 6AAA declaration: 6 years imprisonment with a non-parole period of 4 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Goodenough | Solicitor for Office of Public Prosecutions |
| For the Accused BURNS For the Accused CHEW For the Accused PHILLIPS | Mr J Siggins Ms D Price Mr T Bourbon | Mario Vaccaro Sally Wilson Slater and King |
HIS HONOUR:
1.On Thursday 24 October 2019, each of you, Messrs Burns, Chew and Phillips pleaded guilty to one count of aggravated burglary and you, Mr Chew, pleaded guilty to an additional charge of assaulting Geoffrey Schadendorff.
2.The maximum penalty for aggravated burglary is 25 years’ imprisonment, while the maximum penalty for common law assault is five years’ imprisonment.
3.Tendered as exhibit A, and read aloud in Court, was the Summary of Prosecution Opening. In brief terms, on the afternoon of Saturday 18 August 2018, you, Phillips and Chew, attended at Burns’ residence to have celebratory drinks with him for his birthday which was to occur the following day. After staying for a short time, you, Phillips and Chew, left Burns’ residence and picked up Mirkovic from his home address in Lavington and went to your mother’s home, Phillips, which is located in North Albury, where you spent time in the rear shed which was set up with furniture and the like for you to socialise with your friends.
4.Burns, you remained at your residence and celebrated your forthcoming birthday with friends.
5.Sometime in the early morning of 19 August 2018, you, Burns, met up with Phillips, Chew and Mirkovic in the rear shed at Phillips’ mother’s house where you all consumed the drug ice. You, Chew, came up with the idea to go to an address in London Road, Wodonga, to steal drugs and cash from that place as you believed it to be an easy target. You, Chew, knew the people who lived at the address and believed that they would have drugs and cash in the house.
6.The four of you armed yourselves, you, Phillips, together with Mirkovic, took hammers, whilst you, Burns, took a cricket bat and you, Chew, a baseball bat. You travelled to the address in London Road, Wodonga, in a cream-coloured Astra sedan, and upon arrival in London Road, you drove past the address several times prior to parking nearby. The four of you walked by the house and stopped and discussed whether you should continue with the intended crime. You all decided to continue and then walked back to the house and up to the front door via the front steps to the veranda. You, Chew, led the way with Mirkovic behind you, who was followed by you, Phillips, and you, Burns. By this time, it was approximately 5.15am.
7.You, Chew, approached the front door, opened the screen door and knocked. You covered your face with a piece of clothing and knocked several times until your victim answered the door.
8.Your victim opened the door, thinking that it was one of his sons coming home, but he was confronted by you, Chew. You said to him “Hey motherfucker” and your victim tried to close the door, but before he could, you, Chew, shoved your baseball bat in to the doorway and forced your way inside the house. A scuffle broke out between your victim and you, Chew, and you both fell to the floor with you, Chew, on top of your victim. You, Phillips, entered the house with your face disguised by an item of clothing. At about this time, your victim’s younger son was woken by the commotion and came out of his bedroom to observe you, Chew, on top of his father. He screamed at you to get off and to get out of the house. Whilst inside the house, you, Phillips, waved your hammer around near your victim and his son to frighten them.
9.You, Chew, got off your victim and swung your baseball at him, but missed. You took a second swing at your victim and struck him on the left thigh. As a result of your aborted entry, all four offenders ran from the house and drove back to your mother’s house, Phillips.
10.As luck would have it, your victim had four closed‑circuit television cameras attached to the outside of his home. One camera captured all four offenders walking up the stairs to the front door and you, Chew, opening the security door. The security footage also shows you, Burns, as being armed with a cricket bat. The entire incident took less than two minutes.
11.Your victim did not require immediate medical attention. However, he did see his general practitioner on 21 August 2018. There was no follow-up treatment required to your victim’s leg injury. However, his left hand was injured in the assault and he underwent three sessions of physiotherapy before that injury resolved.
12.On 22 August 2018, Mirkovic was arrested by police in Albury and was taken to his home in Lavington where he voluntarily surrendered to investigators the clothing that he had worn during the aggravated burglary. Mirkovic participated in a record of interview, during which he made a complete confession and nominated each of you, Burns, Chew and Phillips as his co‑offenders. Mirkovic provided a written statement to investigators about the aggravated burglary and that statement appeared in the hand up brief and is in the depositional material.
13.On 27 August 2018, Mirkovic was bailed and has remained on bail to date.
14.You, Chew, were arrested on 23 August 2018, after initially attempting to run away from police. When interviewed under caution, you made no comment answers to questions put to you. You were remanded in custody, and as at the date of your plea, had spent 427 days by way of pre-sentence detention.
15.You, Burns, were arrested on 30 August 2018, and when interviewed under caution denied any knowledge of or involvement in the incident, stating to police that you had not been in Wodonga for months. You were remanded in custody and were subsequently granted bail on 7 March 2019. As at the date of your plea, you had spent 190 days by way of pre-sentence detention.
16.You, Phillips, were arrested by police on 1 September 2018 after initially attempting to run away from them. You were extradited to Victoria on 2 September 2018 but you were not interviewed in relation to the aggravated burglary.
17.Burns, you pleaded guilty on 7 March 2019 at a committal mention, having accepted a straight hand-up brief. You Chew offered to plead guilty on 23 March 2019 and this offer was accepted on 1 April and you formally pleaded guilty at a committal mention accepting the hand up brief. You Phillips pleaded guilty at a committal mention on 7 February 2019 accepting the hand up brief. In the circumstances, each of your pleas must be regarded as having been entered at the earliest possible opportunity. Accordingly you are entitled to the benefits that flow to each of you being that your pleas of guilty have utilitarian benefit and are some evidence of your remorse.
18.Tendered as exhibit B was the victim impact statement of your victim Mr Schadendorff. As at 19 November 2018, he was finding it difficult to sleep. He experienced anger at what had happened to him and was especially angry at you, Chew, as you had grown up with his elder son and you had always been welcome in his home. As at November 2018, Mr Schadendorff was worried about his younger son going out at night and, on a personal note, was still concerned about the injury that he had suffered to his left hand.
19.Upon arraignment, each of you, Burns, Chew and Phillips, admitted your prior convictions.
20.Burns, you are aged 23 years of age and have 31 convictions or findings of guilt from ten court appearances between July 2012 and November 2016. You have four prior convictions for violence, eight prior convictions for dishonesty, as well as driving offences.
21.You, Chew are only 21 years of age and have 30 convictions or findings of guilt from seven court appearances from December 2012 until January 2018. You have six prior convictions for aggravated break and entering a dwelling in company, both in the Children’s Court and the Albury Local Court, and have been sentenced to terms of imprisonment in respect of your last two appearances for that kind of offence. In addition, you have prior convictions for affray, robbery in company, possessing prohibited drugs, and being the subject of a police pursuit. At the time of the commission of the instant offences, you were on parole and this is an aggravating feature of your offending.
22.You, Phillips, are aged 29 years and have 16 findings of guilt or convictions from eight court appearances from June 2009, when you were aged approximately 18, until January 2017, when you were aged approximately 26 years. Your criminal history includes offences of dishonesty, violence, driving and drug offences.
23.Garry Burns, you are a youthful offender being but 23 years of age. Tendered as Exhibit 1 on your plea was a bundle of documents comprised of a psychological report dated 12 August 2019 by Mr Matthew Staios, together with certificates relating to courses undertaken by you while on remand, references from Aaron Dixon and Jason Bryant, as well as two drug screen results dated 23 and 25 July 2019 respectively. The final document in Exhibit 1 was a report from your general practitioner dated 17 October 2019 that records that you have had a left inguinal hernia for years. The hernia is reducible and free and involves only omental fat and that your left femoral canal is normal.
24.It was acknowledged by your counsel, Mr Siggins, that your offending was serious and that it involved a “run-through” of a private home. Further, it was accepted on your behalf that denunciation and general and specific deterrence had significance in the exercise of my sentencing discretion.
25.You are the middle child of a sibship of three. Your parents separated in your early childhood and you remained in the custody of your father until his death when you were aged 17 years. Mr Staios reported that in grief you turned to a negative peer group and commenced to abuse methylamphetamine. You effectively couch surfed for the next two years. Despite this background, which included you leaving school at Year 10 you obtained a roof plumbing apprenticeship and completed your indenture and are a qualified tradesman roofing plumber.
26.A condition of your bail was that you reside with your mother and until I remanded you in custody for sentence you had resided with her for approximately a year. As a result, you have reconciled with your mother from whom you were estranged for many years. You reported to Mr Staios that you have divorced yourself from your negative peers and whilst you were on bail you have continued to work as a roofing plumber.
27.You are presently working on weekends for Mr Bryant who describes you as very skilled, reliable, hardworking, polite, and that you exhibit a positive attitude to your work. These characteristics are confirmed in part by the reference from Mr Dixon.
28.Whilst in prison, you underwent some drug counselling but this came to an end upon you being released on bail. You have not sought drug counselling since being released from prison, although the drug screens tendered on your behalf demonstrate that you are presently drug-free. However, subsequent to your remand you were party to the smuggling of contraband into a police cell at Wodonga. The contraband was cannabis, which you used in part. You may be free of the drug, methylamphetamine, but plainly you are not so in respect of the drug, cannabis.
29.It was put on your behalf that you were immature and that following the death of your father your life destabilised and was characterised by unstable accommodation and drug abuse. Despite this and to your great credit, you were able to obtain your trade qualification. Your counsel, Mr Siggins, placed specific emphasis on your early plea of guilty; your remorse, as evidenced by your early plea; your youth; that you have already spent six months or so in adult custody, and for the first time; and further that presently you have stable accommodation and stable employment and are drug-free. Accordingly, it was put on your behalf that you have good prospects for rehabilitation, which I accept subject to you remaining drug free.
30.Further, it was put on your behalf that your offending was mid to low level. Your offending was characterised by your abuse of the drug methylamphetamine that may have clouded your judgment but is in no way an excuse for your conduct. You went with others, whilst armed, for the purposes of breaking into a private home in the early hours of the morning to steal what you believed was to be drugs and money. But for the resistance of your victim, I have no doubt that all four offenders would have entered your victim’s home. Your offending was further characterised by a reconnaissance of the target premises. Further, you and your co‑offenders walked by the target home making a further visual observation of it prior to deciding to execute your crime. Whilst you did not come up with the idea to commit the crime, nor did you enter your victim’s home, your level of criminality is high.
31.Weighed against the objective circumstances of your offending must be the fact that you have spent time in prison on remand, that you have had 12 months at liberty and during that time have maintained employment.
32.Eric Chew, you are 21 years of age. Tendered as Exhibit 2 on your plea by Ms Price of Counsel, who appeared on your behalf, was a bundle of documents including a report from Ms Lechner, psychologist, dated 24 June 2019; a confidential psychological report concerning your performance at school when you were in Grade 5 and aged approximately 10 years; a number of certificates relating to courses that you have undertaken while in custody; and a number of urine screens which demonstrate that you are presently drug-free.
33.A combination of the contents of the two psychological reports demonstrated that you have had a very deprived background. In the 12 months prior to June 2008, when you were aged between nine and 10 years, you had as many as 10 placements in foster care which failed due to your aggressive and threatening behaviour or break down of trust. At one stage, whilst aged nine or ten, you were placed in a boarding house where you were sexually molested. By Grade 5, your schooling had already been severely disrupted and your life at school was marked by disruptive, oppositional and aggressive behaviour. You required a teacher’s aide and you were incapable of attending school for more than half a day at a time. You were assessed as having low-average cognitive ability. You displayed/experienced performance anxiety and poor attention skills.
34.When assessed in 2008, your assessor, Joel Harris, psychologist, opined:
“More specifically his scores on anxious/depressed, social problems, thought problems, attention problems, rule breaking behaviour, and aggressive behaviour syndromes were all in the clinical range above the 97th percentile.”
1.Upon testing by Ms Lechner, your performance placed you in the borderline range of intelligence with an IQ of 71, meaning that 97 per cent of the population would do better than you.
2.You reported to Ms Lechner that you presently have close relationships with your mother and brother. Your mother suffers from depression and anxiety and as a child you witnessed domestic violence perpetrated on her by her partner who you believed to be your biological father. As children, you and your brother witnessed your mother in an attempt on her own life. You attempted to take your own life as a child aged but 12 years. Your upbringing was characterised by moves between Sydney, Maldon and Wodonga, as well as other places, and the involvement of the Department of Health and Human Services with your family unit. It is plain that your mother was often unable to effectively parent you and this resulted in you being placed in foster care.
3.You reported to Ms Lechner that you are now close to your mother, although there were a number of years during which you were estranged from her.
4.Your childhood was characterised by observing acts of violence in your home and as a teenager being subject to violence as well as engaging in acts of self-harm.
5.You began abusing ice at the age of 16 years and have abused cannabis, ecstasy as well as chroming for a short time.
6.Whilst in prison, you have been held at Ravenhall where you have behaved well and have been given the role of a billet in the forensic mental health unit where you clean and serve food to other inmates. You have successfully completed courses in occupational health and safety, food safety, traffic management, spray painting and warehousing, as well as treatment programs such as “Ice and Me” and “Coping with Change”. You have placed your name on the waiting list to do an anger management course. You have provided negative urine screens. You remain in contact with your mother and brother who visit you occasionally. Further, you have been prescribed Zoloft for depression.
7.You have had one significant relationship which has resulted in a child, a boy. You are estranged from your former partner, although there seems to be an agreement between you and her that you will play some role in the upbringing of your son.
8.You hope on release from prison to obtain work in traffic management as you have obtained a qualification in that field whilst in prison.
9.You entered your plea at the earliest opportunity and are entitled to the benefits that flow to you from that plea.
10.I have little doubt that your upbringing has marked you for life. However, it cannot be ignored that it was your idea to commit the aggravated burglary. The aggravated burglary was performed on a home known to you, for you were known to its occupants and welcomed by them into their home. You were the person to knock on the door and to force your way into the premises and subsequently assault your victim, who was known to you. Despite your youth, intellectual and personality deficiencies, it is plain that you were the leader of this group of home invaders and your conduct must be denounced. You must be specifically deterred from committing crimes of this kind in the future. However, I am satisfied that the application of general deterrence in your circumstances must be sensibly moderated. Any prospect of your rehabilitation is conditional upon you remaining drug-free and obtaining employment upon release from prison.
11.You are youthful offender however I am of the view that protection of the community from you must play some limited role in arriving at an appropriate sentencing disposition in your circumstances.
12.Kayne Phillips, you are 29 years of age. Mr Bourbon of Counsel, who appeared on your behalf, tendered as Exhibit 3 a bundle of documents including his outline of submissions; a chronology; the report of Mr Cummins, psychologist, dated 21 June 2019; a bundle of certificates of courses completed by you while you have been in custody; and a bundle of negative urine screen results.
13.You were born in Bundaberg, Queensland, and it was submitted on your behalf that you had a difficult upbringing as a child, although you have remained close to your mother, who is aged 68 years and is retired and lives in Albury. You have received visits from your mother while in custody.
14.Your father was an alcoholic and was physically abusive towards your mother and you regularly witnessed this abuse as a young child. Your father separated from your mother and left the family when you were but five years of age. You have not seen your father since you were 11 years of age and your father’s absence, it was submitted, had a negative impact on you because you grew up without a male role figure in your life. Another view is that your mother and you were well rid of your father.
15.You attended the Griffith Public Primary School and at about the age of nine years you were diagnosed with a learning difficulty, ADD, ADHD and OCD. You were treated with dexamphetamine. However, your mother stopped giving you this medication because she felt it made your condition worse. Fortunately for you, your condition resolved and you do not suffer from the adult version of these complaints.
16.Because of your behaviour, your mother was unable to cope with you and between the ages of 11 and 13, you lived with your half-brother, Jason Manley.
17.You attended the Albury High School, leaving when you were in Year 8. Upon assessment by Mr Cummins, he opined that you are of low-average intelligence. After leaving school, you lived on a disability pension until you began working as a concreter when you were 16 years of age. From the age of 16, you worked intermittently as a concreter for a period of approximately eight years. When you were about 24 years of age, you moved to Canberra and worked for a commercial building company for a period of approximately six months before returning to the Albury area where you worked as a truck washer for approximately 12 months.
18.Mr Bourbon informed me that you have been a keen sportsman, playing both Australian Rules and Rugby League football on the same weekend during the winter season. You enjoyed keeping physically fit until you became addicted to the drug ice when you were about 25 years of age.
19.In respect to your history of drug abuse, you have followed a well-travelled path in that you commenced to use cannabis when you left school in Year 8 and smoked it on a daily basis until you were about 21 years of age. During the period between the ages of 16 and 21 years, you used ecstasy on weekends and as previously noted, commenced using the drug ice when you were about 25 years of age, initially binging on the drug over weekends. However, your use of ice increased significantly after you had been assault by your brother in 2016, which resulted in you being hospitalised.
20.The assault on you by your brother in the context of your family unit caused you to leave the family home and your abuse of ice escalated. It was submitted by Mr Bourbon that unsurprisingly your life quickly descended into a lifestyle where you stopped working and playing sport, began gambling and ultimately led to the commission of the instant offending.
21.You do not suffer from any major psychotic illness and whilst presently you are moderately depressed and mildly anxious in response to the predicament in which you find yourself, it was not submitted that the principles of Verdins were enlivened in your case.
22.Mr Bourbon submitted that your conduct in custody has been exemplary in that you have ceased using drugs, you have completed the six-hour “Ice and Me” course, as well as others and generally have been of good behaviour, which has resulted in you being able to work as a billet in your unit at Ravenhall Correctional Centre. Whilst at that centre, you completed two weeks of a four-week course on the effects of drugs before you were transferred to the Metropolitan Remand Centre approximately three months ago. At the Metropolitan Remand Centre, you work in the timber factory and your conduct has continued to be exemplary. You have put your name down for a 24 hour drug relapse prevention course and remain on the waiting list to complete that course.
23.It was submitted that your conduct whilst in custody has demonstrated that you are motivated to rehabilitate yourself and that you are presently in a strong position to pursue your rehabilitation within the community. It was submitted on your behalf that your criminal history was relatively limited.
24.In all the circumstances, Mr Bourbon submitted that the appropriate sentencing disposition was a term of imprisonment combined with a Community Correction Order.
25.Like your co‑offenders, taking into account your respective ages, you have a long history of drug abuse and it can be accurately said that your prior criminal history is not as significant as those of your co‑offenders, Burns and Chew. You pleaded guilty at the earliest opportunity and are entitled to the benefits that flow to you from that plea. However, you are an appropriate vehicle for the application of general and specific deterrence. Like your co‑offenders, I regard your level of criminality as high. You, like each of your co‑offenders, had an opportunity to walk away from the crime that you had planned to commit, initially in the rear shed of your mother’s home.
26.In respect to each of you, Burns, Chew and Phillips, aggravated burglary is a serious offence punishable by 25 years’ imprisonment. It is a prevalent offence within the Victorian community generally. Whilst Chew came up with the idea of committing the aggravated burglary, each of you agreed to commit that crime, you travelled together to the target residence, conducted both a mobile and walk-by reconnaissance on the residence and decided to continue with your planned crime.
27.Your offending was serious. It is but another example of a confrontational aggravated burglary fuelled by the drug ice. Burns and Phillips, you are appropriate vehicles for the application of general and specific deterrence, as well as punishment and denunciation. Subject to the comments that I made in respect to general deterrence, you, Chew, are also an appropriate vehicle for the application of specific deterrence as well as punishment and public denunciation. I am cognisant of your ages, Burns and Chew, and take your rehabilitation into account at arriving at an appropriate sentence in each of your cases. In each of your cases, any prospects of rehabilitation that you may have is entirely dependent upon you remaining drug-free and obtaining employment. Subject to this qualification, I can only regard your prospects for rehabilitation as being guarded in respect of each of you.
28.Will you please stand? All three. Doing the best I can, taking into account the objective circumstances of your offending together with each of your personal circumstances and applying sentencing principle, I sentence each of you as follows:
Garry Burns, you are sentenced to three and a half years' imprisonment and I direct that you serve 18 months' imprisonment before you will become eligible for parole. I declare that you have spent 209 days by way of pre-sentence detention not including today. I declare, pursuant to s.6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to six years' imprisonment with a non-parole period of four years' imprisonment. You may be seated;
Eric Chew, on Charge 1 I sentence you to four years' imprisonment. On Charge 2 I sentence you to 12 months' imprisonment. I order that six months of the sentence imposed on Charge 2 be served cumulatively upon Charge 1. This results in a total effective sentence of four years and six months' imprisonment, and I fix a period of two years and six months' imprisonment as the period of imprisonment that you must serve before you will become eligible for parole. I declare that you have spent 446 days by way of pre-sentence detention not including today. I declare that but for your plea of guilty I would have sentenced you to seven years' imprisonment with a non-parole period of four years and six months' imprisonment. You may be seated;
Kayne Phillips, I sentence you to four years' imprisonment. I direct that you serve two years' imprisonment before you will become eligible for parole. I declare that you have spent 437 days by way of pre-sentence detention not including today. I declare that but for your plea of guilty I would have sentenced you to six years' imprisonment with a non-parole period of four years' imprisonment. You may be seated.
1.In respect of each of the prisoners there is an application for a forensic procedure pursuant to s.464ZF(2) of the Crimes Act. What is counsel's attitude in respect to that? Is there any opposition?
2.COUNSEL: No, Your Honour.
3.MR MARSHALL: Your Honour, I apologise that is only this matter I had not addressed with my client. I have only technically just speaking today. If I may approach him now?
4.HIS HONOUR: Yes, by all means.
5.MR MARSHALL: Thank you. Thank you, Your Honour. That will not be opposed.
6.HIS HONOUR: Messrs Burns, Chew and Phillips, would you please stand? The Crown have made application for a forensic sample under the relevant provision of the Crimes Act 1958, that is a scraping from your mouth. I have granted the application in each of your cases because of the seriousness of the circumstances of the offending warrant making such an order, your prior convictions are such as to warrant making the order, the order is not opposed and the granting of the order is in the public interest. I must inform each of you that at the time of the request for the forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, that a sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted. I hand down a copy of that order. Please be seated.
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