Director of Public Prosecutions v Burrows (a pseudonym)
[2022] VCC 2308
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CYRIL BURROWS (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 December 2022 | |
CASE MAY BE CITED AS: | DPP v Burrows (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 2308 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Brennan | Office of Public Prosecutions |
| For the Accused | Ms M. Shanahan | Slades & Parsons |
HER HONOUR:
1
Cyril Burrows[1], you have pleaded guilty before me as follows. In relation to indictment number M11267282, one charge of attempted carjacking and
one charge of dishonestly receiving stolen goods.
[1] A pseudonym.
2
You have also pleaded to the following related summary offences which were uplifted for hearing in this court pursuant to s145 of the Criminal Procedure Act, they being Charge 5 committing an indictable offence whilst on bail;
Summary Charge 6 contravening a conduct condition of bail;
Summary Charge 10 dangerous driving; Summary Charge 11 driving whilst disqualified, and Summary Charge 12, a second charge of committing an indictable offence whilst on bail.
3 You have also pleaded guilty to the following charges contained in indictment M11216232, to one charge of theft; one charge of conduct endangering persons; two charges of possessing a drug of dependence, and the following related summary offences which were also uplifted pursuant to s145 of the Criminal Procedure Act, that being a charge of dealing with property suspected of being the proceeds of crime, namely a number plate, and driving whilst disqualified.
4 The facts underlying your offending are as follows. I will begin with the facts scenario underlying the charges on indictment M11267287.
5 At about 1.27 in the morning on 15 June 2021 the victim, Ritchie Duncan[2], received a phone call from you telling him that you had cologne to sell. You had known Ritchie Duncan for about a year. At about 2.24 am you called Mr Duncan back, asking him if he wanted to buy the cologne. It was agreed that he would purchase it for $100 and it was agreed the deal would take place at the intersection of two roads in Narre Warren at 2.45 am.
[2] A pseudonym.
6 Mr Duncan ultimately did not attend and you then called him on six occasions before Mr Duncan answered the phone, and told you that he was not going to attend and he was at his house. Mr Duncan then drove to the location and parked on the street beside a milk bar. You walked up to his car, got into the left passenger seat, asked Mr Duncan how much money he had, Mr Duncan saying he only had $70 in cash which he gave you, saying that he would transfer the rest to you.
7 You asked for cash, and it was decided that the two of you would drive to a
7-Eleven nearby. Mr Duncan then got the money out of an ATM and gave it to you, and you then asked for Mr Duncan’s car key. Mr Duncan told you to stop playing around. You said 'Give me your fucking key', and as Mr Duncan was scared of you he gave you the key.
8 You told Mr Duncan to get out of the car and not to lag to police. Both you and Mr Duncan got out of the car and Mr Duncan got back into the driver's seat and tried to start the car. You came over to the driver's side while Mr Duncan got out again and ran around to the front of the car and you got into the driver's seat and tried to start the car.
9 Mr Duncan opened the passenger side front door and tried to kick you to the head to distract you. He said he was going to call for help, at which you got out of the car and began chasing Mr Duncan. You got back in the car and tried to start it again, then Mr Duncan opened the passenger side door, attempted to kick you and called for help.
10 You then got out of the car and walked to another vehicle. Mr Duncan followed you asking for his keys back, but you got into the passenger side door of a Holden sedan that drove up. Those facts underline Charge 1 on the indictment, attempted carjacking and Summary Charges 5 and 6.
11 After this incident police tried to locate you and discovered you were staying with your brother and sister-in-law in Dandenong. On 18 June 2021 police undertook surveillance of the property by doing a covert drive by and noted that a car, which had been stolen from one Arnold Xerri[3] from the garage of his home on 17 June, was parked in the driveway of that address.
[3] A pseudonym.
12 Other units attended to arrest you. You left the house at about 3.30 in the afternoon and got into the stolen car, started it, and left the address. Your path was blocked by a marked police vehicle. You conducted a U-turn and tried to drive along a suburban street at a fast rate of speed. Police deployed stop sticks to deflate the car tyres. You continued to drive the car on flat tyres and police started a pursuit, noting that at that stage you were driving the car on the rims.
13 You kept driving. Eventually you were forced to stop because a car was driving towards you. You were told to get out of the car and sprayed with capsicum spray.
14 You were arrested by police, and in a record of interview said that on the night of the attempted carjacking you were with a friend in the eastern suburbs. You said that you had bought the stolen car police arrested you in for $500 the day before but could not remember from who. You eventually admitted you knew Mr Duncan but said he stole drugs, and essentially made denials to the charges.
15 The maximum penalty for attempted carjacking is 10 years' imprisonment. The maximum penalty for dishonestly receiving stolen goods, which was your possession of the stolen vehicle, is 15 years' imprisonment. The maximum penalty for committing an indictable offence on bail is 30 penalty units or three months' imprisonment.
16 The maximum penalty for contravening a conduct condition of bail is 30 penalty units or three months' imprisonment. The maximum penalty for driving in a manner dangerous, which occurred when you were seeking to flee from police after you were picked up in Mr Xerri’s vehicle, is 12 months' imprisonment or 120 penalty units, and the maximum penalty for driving whilst disqualified is
two years' imprisonment or 240 penalty units.
17 I should add that at the time of this offending you were on bail for another offence. You had contravened the curfew conditions of that bail. You drove dangerously, as I said, and at the time of this driving you were disqualified from holding a licence.
18 I now turn to the facts underlying the offending on indictment M11216232.
19 At about 12 am on 8 June 2021 police in the Pakenham area saw you driving a silver Mahindra station wagon with attached registration plates WVR 937. Your licence had been cancelled on 15 July 2020 for a period of two years.
20
On 22 May 2021 the owner of a silver Mahindra station wagon with the registration NAN I02 parked his car opposite a kebab shop on
Plenty Road, Reservoir, and while he was in the shop he heard car tyres screeching and saw a man in the driver's seat of his car and drive away. The owner called Triple 0 to report the matter to police.
21 As I said, police saw the silver Mahindra station wagon being driven by you which, however, had different number plates attached to it. You accelerated away from police and continued until they lost sight of you as you drove on Waterside Drive, Pakenham. They regained sight of you when you entered the Princes Freeway at McGregor Road in the wrong direction heading west into oncoming eastbound traffic. You then turned around and drove in the correct direction with police again losing sight of you. The police air wing joined and located you driving south on Koo Wee Rup Road.
22 At about 12.20 am police deployed a tyre deflation device which did deflate the tyres and you came to a stop on the Princes Freeway heading towards the city. You and your female passenger Rebecca Blair[4] both got out of the car to run away but were arrested by police, and you were taken to Pakenham police station for interview.
[4] A pseudonym.
23
Driving the stolen vehicle underlines the charge of theft of motor vehicle. Your driving on that occasion underlies Charge 2, conduct endangering serious injury. Police checked the car and you were found to be in possession of small amounts of cannabis and ice. Police determined that you were disqualified for obtaining a licence for a period of two years, and that underlies
Summary Charge 9, driving whilst disqualified.
24 The charge of dealing with the proceeds of crime relates to the number plates which were attached to the vehicle. You told police you had purchased the car the day before that you fled from police, and you had just used. You drove on the wrong side of the road to get away from police and realised it was dangerous. You believe you got up to 180 kilometres per hour during the incident. You knew you were disqualified and that the drugs were for your personal use.
25 The maximum penalty for motor car theft is 10 years' imprisonment. The maximum penalty for conduct endangering persons is five years' imprisonment. The maximum penalty for possession of cannabis is one year or 30 penalty units if the court is satisfied on the balance of probabilities it was not possessed for any purpose relating to trafficking.
26
The maximum penalty for dealing with property being proceeds of crime is
two years' imprisonment. The maximum penalty for driving whilst disqualified, as I have said, is two years' imprisonment or 240 penalty units.
27 You have essentially since been remanded in custody. Apart from the period of bail when you were released, reoffended, and were placed back in gaol and have been in custody by way of pre-sentence detention for a period of 544 days.
28 You are now 25 years of age. You were 24 at the time of this offending. You have had a difficult personal history. Your parents were chronic substance abusers and you have two older brothers who have intellectual disabilities.
29 You were only six weeks old when you were placed into the care of the Department, and between then and when you were 19 months old underwent 15 short term foster placements.
30 You were then taken in by your foster mother, who has been extremely supportive of you ever since, has always appeared in court when you have been in trouble and, indeed, has attended on the occasions of the plea arising from this offending.
31 In short compass you have been diagnosed with a low IQ, ADHD, and an oppositional defiance disorder. You finished your formal schooling in Year 7. You became involved in drug use of both cannabis and ice in your early teens.
32 You have, along the way, compiled a long and concerning criminal history beginning in 2013. You have been dealt with for burglary, theft, possession of drugs, reckless conduct endangering serious injury, serious driving offences, motor car theft, committing an indictable offence on bail, attempted robbery, driving in a manner dangerous, failing to stop on police request. You breached youth attendance orders and youth parole orders. A lot of your offending appears to devolve around driving offences, serious driving offences.
33 You have been dealt with on several occasions for reckless conduct endangering life and failing to stop motor car on police request. Dangerous driving appears regularly throughout your prior history. There are also a large number of motor vehicle thefts. You have been dealt with for possession of drugs, for assault in company, behaving in a riotous manner. In 2018 you were dealt with for armed robbery and attempted armed robbery and so on. This has just gone on and on and on.
34 Over the years, as I have said, you have been supported by your foster mother and her extended family. It has got to the point where, unfortunately, your behaviour has been such that she has not been able to offer you a home.
35 The time you have spent in custody is a longer period of time. You have been continuously in an adult gaol. The application was made for you to be placed on a drug and alcohol treatment order and I have indicated that I am going to find you suitable for that order.
36 I am satisfied that the offending was linked to your drug use. I understand that the offending involving Mr Duncan occurred at a time when you were trying to make money to buy drugs.
37 The offending in relation to the dangerous driving on the freeway I find occurred at a time when you had just used drugs which caused you to take the incredibly serious decision to drive the wrong way on a freeway. Luckily because of the time of night there were no other cars on the road.
38 You have to understand, Mr Burrows, that at some stage if you keep doing this you are either going to end up being really seriously injured in a car accident yourself, or you are going to seriously injure or kill someone else. Do you understand that?
39 OFFENDER: Yes, Your Honour.
40 HER HONOUR: If you get done for culpable driving the standard sentence for culpable driving is nine years' imprisonment. I understand that when you are driving you are high and not thinking properly, but I am struck by the number of times you have been dealt with by courts for serious driving matters; reckless conduct endangering life, reckless conduct endangering serious injury.
41 You seem to have a lot of trouble staying out of cars. You involve yourself heavily in motor car theft offending, and then a lot of the time it seems to end up with you being pursued by police. Am I right?
42 OFFENDER: Yes, Your Honour.
43 HER HONOUR: You need to be extremely careful of that. However, you have been found suitable for a placement on a Drug and Alcohol Treatment Order (DATO). You were assessed by the Drug and Alcohol Treatment Court (DATC) clinical adviser as having a substance dependency disorder. The main concern around you, insofar as the case manager assessment report, was your place of residence. Fortunately you have obtained a place in the Bridge program in Bendigo, and that place is available for you today.
44 Now, Mr Burrows, because of that as I said I am happy to place you on this order but you have got to understand something, and that is if you do not like the Bendigo Bridge program, too bad. All right?
45 OFFENDER: Yes, Your Honour.
46 HER HONOUR: If you leave you will breach the order. In a moment I am going to sentence you because what happens when a person is placed on a drug and alcohol treatment order is that the judge sentences them to a term of imprisonment, and then that is suspended. Do you know what I mean by suspended?
47 OFFENDER: I serve it in the community?
48 HER HONOUR: No. It means that I put it off as long as you agree to obey the conditions of a drug and alcohol treatment order, and part of that condition is that you remain in the Bridge program. If you decide you do not like it there or you get kicked out you will have breached the order, and if you breach the order then you serve the term of imprisonment, the gaol time that I am about to impose on you, all right?
49 So you have got to understand that even though you are being released from gaol and you are on the DATO, that does not mean you that you are not in danger of going into gaol. Have you got that?
50 OFFENDER: Yes, Your Honour.
51 HER HONOUR: Can you say back to me what I said?
52 OFFENDER: That even though I am getting the drug treatment order ‑ ‑ ‑
53 HER HONOUR: Yes.
54 OFFENDER: That I'm not in a risk of coming back and serving my sentence, but as long as I comply with it ‑ ‑ ‑
55 HER HONOUR: Yes. You have put that better than I did. Very good. All right. So in the circumstances, as I have said, I am prepared to place you on a drug and alcohol treatment order. The first thing I have to do, however, is I have sentence you to a term of imprisonment then I will explain what the DATO is.
56
In relation to indictment M11267287, Charge 1, you are sentenced to
20 months' imprisonment. Charge 2, you are sentenced to four months' imprisonment. Summary Offence 5, you are sentenced to one month imprisonment. Summary Offence 6, you are sentenced to 14 days' imprisonment. Summary Offence 11, you are sentenced to two months' imprisonment. Summary Offence 12, you are sentenced to one month imprisonment.
57 Sorry, I left out Summary Offence 10. You are sentenced to four months' imprisonment. The base charge then will be Charge 1 which is 20 months. I order that four months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1 and the rest are concurrent, and that will give a total effective sentence of 24 months.
58
In relation to indictment M11216232, Charge 1, you are sentenced to nine months' imprisonment. Charge 2, you are sentenced to 20 months' imprisonment. Charge 3, you are fined $100. Charge 4, you are sentenced to one month imprisonment. On Summary Offence 6, you are sentenced to
one month imprisonment, and Summary Charge 9 you are sentenced to
one month imprisonment. The base sentence there will be the sentence on Charge 2, 20 months.
59 I order that five months of the sentence imposed on Charge 1 be served cumulatively to the sentence imposed on Charge 2, giving a total effective sentence of 25 months.
60 I order that 12 months of the sentence imposed on indictment M11267287 be served cumulatively to the sentence imposed on indictment M11216235, giving a total effective sentence of three years and one month. Does that all add up?
61 So you have got 24 months on the first one and 25 months on the second, so I have added 12 months to that, so that should be three years and one month.
62 What that means is that if you do not stick to the DATO and the conditions, you are looking at serving three years' gaol. Do you understand that?
63 OFFENDER: Yes, Your Honour.
64 HER HONOUR: Good. Now, I need to tell you there are two parts of the DATO. The first one is what is called the core conditions. You have had CCOs before, haven't you?
65 OFFENDER: Once.
66 HER HONOUR: Yes, once. Remember they told you about all the conditions of the CCO?
67 OFFENDER: I think so.
68 HER HONOUR: You think so. You obviously were not paying lots of attention. These conditions will last for three years and one month, which is the length of your sentence, all right, and they are for the next three years and one month you cannot commit any other offence punishable by imprisonment. That means that if you commit an offence that you could get gaol for, not that you do get gaol for but you could, you will breach the order.
69 You have to attend the Drug Court when the court says you have to. You have to report to Melbourne Drug Courthouse within two working days, and luckily for you our gorgeous staff from Drug Courthouse are here today to look after you.
70 You must report to and receive visits from members of the Drug Court. You have to undergo treatment for alcohol and drug dependency as specified by the Drug Court.
71 If you change your address you have to give at least two days' notice before you do that to the Drug Court officer. You cannot leave Victoria without the permission of the Drug Court, and you must obey all lawful instructions from the Drug Court team, all right? So they are what are called the core conditions and they last for the whole time that you are on the order.
72 Now, the next part of the conditions is what is the called the program conditions and this will last for two years or until further order. You have to submit to drug and alcohol testing as directed. You have to submit for detoxification or other treatment; in other words, drug treatment as directed. You have to go to vocational educational and employment programs as directed, and that is because while you are on the order it might be thought a good idea to try and get your education a bit further down the line.
73 You have to attend on doctors, psychiatrists, or psychologists as you are told to. You are not allowed to knock around with or associate with Rebecca Blair, all right? She is out of your life now while you are on the order. You have to live at the Bendigo Bridge program.
74
COUNSEL: Your Honour, apologies. The residential address for
Bendigo Bridge is [omitted].
75
HER HONOUR: Thank you. It is [omitted] Road until further order. There will be a curfew, and that is that you are to be at the Bridge program between 9 pm and 6 am so you cannot go out at night, and that is until further order. You are not allowed to go to Dandenong. You are not allowed to use a drug of dependence without lawful authorisation. You are not allowed to drink alcohol. You have to make contact with a GP in 28 days as directed; probably the
Bridge program will sort that for you.
76 You must do or not do anything that the Drug Court considers necessary or appropriate about your drug and alcohol dependency, and the personal factors that the Drug Court considers contributed or were the reasons behind your criminal behaviour. Are you prepared to enter the DATO?
77 OFFENDER: Yes, Your Honour.
78 HER HONOUR: Thank you very much. We'll just call that up. While that is being printed out I am just going to stand down.
(Short adjournment.)
79 HER HONOUR: Thank you. We'll just sign this and we'll get Mr Burrows to sign it.
80 Good luck with this, Mr Burrows, all right? I hope it goes really, really well. This can be the game changer for you, all right?
81 OFFENDER: Thank you, Your Honour.
82 HER HONOUR: Before I stand down can I thank everyone who has been involved in this, particularly you - not that I am leaving you out, but I've had a lot of dealings with Mr Brennan. Thank you so much for all your help and your work, and your instructor in the Drug Court, and I'd like to say the same to you as well for the invaluable and enormously hopeful and inspiring work that they do on these drug and alcohol treatment orders, and I wish you all very happy Christmas. Thank you. We will stand down.
83 MR BRENNAN: Sorry, Your Honour. I just want to make sure this - apologies to stand up after that ‑ ‑ ‑
84 HER HONOUR: Are you going to wreck my fantastic finish by saying my maths is wrong?
85 MR BRENNAN: Yes - no, no, and ruin the exit? There are two disposal orders. I just want to make sure that they were made.
86 HER HONOUR: We will get them to you, no problem at all.
87 MR BRENNAN: Yes. Thank you, Your Honour.
88 HER HONOUR: Thank you so much. Yes, we'll stand down.
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