Director of Public Prosecutions v Burt

[2020] VCC 230

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 19-00655

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON BURT

---

JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Ballarat
DATE OF HEARING:	22 January 2020
DATE OF SENTENCE:	29 January 2020
CASE MAY BE CITED AS:	DPP v Burt
MEDIUM NEUTRAL CITATION:	[2020] VCC 230

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Ms A. Hurst	Adrian Paull Criminal Lawyers

1HIS HONOUR:  Brandon Lee Burt, could you stand up please.  You have pleaded guilty to two charges of burglary, two charges of arson, and one charge of destroying property.  These offences carry the following maximum penalties:  burglary, 10 years' imprisonment; arson, 15 years' imprisonment; destroying property, 10 years' imprisonment.  It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, summary of prosecution opening upon the plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor, which I shall now briefly summarise.

2These offences arose out of three incidents committed on 19 and 20 August 2018.  The first incident involved you breaking into a house at 7234 Midland Highway.  The house was under construction.  You entered the house after smashing a window - Charge 1, burglary.  Once inside you set fire to a blanket and drop sheets were either set alight or ignited as a result of the fire.  The fire eventually burnt itself out due to a lack of combustible materials but after much damage was done.  The fire caused $98,789.81 damage to the property - Charge 2, arson. 

3The second incident occurred between 2.40 am and 3 am on 20 August 2018 when you broke a window at the Buninyong supermarket.  The cost of the replacement was $973.21 - Charge 3, destroying property.   The final incident was between 3.30 am and 4.40 am on 20 August 2018.  You smashed windows at the Buninyong Football and Netball Club rooms in Buninyong and entered those rooms through a smashed window - Charge 4, burglary.  Once inside you started a fire in the female toilet area.  You moved a 9 kilogram portable gas bottle into that toilet area and opened the gas valve before leaving the room.  The escaping gas ignited and exploded, but fortuitously the explosion or lack of oxygen may have caused the fire to extinguish.  The cost of damage caused by the fire was $1,216.96 - Charge 5, arson.

4You were arrested on 21 August 2018.  You denied any involvement in the first incident and made a no comment response in respect of questions about the other two incidents.  I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty, you are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of the trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage.  I accept on all the material before me that you are genuinely remorseful. 

5I have been told something of your circumstances and these matters are set out in detail in the sentencing remarks of Her Honour Judge Pullen dated 21 September 2017 and in the expert reports tendered on your behalf.  You are 24 years of age, having been born on 11 October 1995.  You are a single man.  You had a grossly disadvantaged upbringing characterised by neglect and exposure to domestic violence and parental substance abuse.  You never met your biological father.  You have a relationship with your mother.  You are the oldest of four brothers with different fathers.  You were subjected to numerous foster care placements having been taken into care by DHS as a young child.  Your childhood was very dysfunctional.  These matters have all been described at length in Her Honour Judge Pullen's sentencing remarks, paragraphs 45-59, and in the expert reports of Dr Gee, paragraphs 14-17, and Dr Darjee.

6You exhibited serious behavioural problems from early childhood.  As a teenager you spent time in detention.  You spent most of your time as an older teenager and young adult in youth detention or prison, having previously had access to many relevant disability services (see paragraphs 18 and 19 of
Dr Gee's report).  You have a history of substance use and intoxication but as a result of inconsistent accounts you have provided it has been difficult to obtain a clear picture of your substance use history.  I accept that having regard to your grossly disadvantaged background and upbringing the principles enunciated in Bugmy's case apply.

7You are still a relatively young man.  These offences were committed when you were 22 years of age.  I accept that the principles in respect of the sentencing of youthful offenders have some application, however it is very relevant that these offences, particularly arson and burglary, are serious and you have a very long history of criminal behaviour often involving serious criminal offences with many past breaches of court orders.  You have committed the offence of arson on a number of past occasions.  I shall deal with this further shortly.  Relevant authorities in respect of your relative youthfulness were noted in Her Honour Judge Pullen's sentencing remarks, and I have had regard to all of these authorities and the principles enunciated in them. 

8You have a long and complex history of mental health issues described in detail in the reports of Dr Gee and Dr Darjee, and dealt with in much detail by Her Honour Judge Pullen.  This has been well summarised by the psychiatrist,
Dr Darjee, in the opinion section of his recent report dated 19 December 2019.  He states, 'In the context of suffering childhood neglect, physical abuse, sexual abuse, emotional abuse, and disrupted attachments, he developed serious emotional behaviour on developmental difficulties in early childhood, which has continued into adolescence and young adulthood.  He was diagnosed with attention deficit hyperactivity disorder, mild intellectual disability, and severe attachment disorder in childhood.

9'19.  In adulthood he meets criteria for a mild intellectual disability and a severe personality disorder.  His personality is characterised by mistrust, detachment, impulsivity, emotional instability, unstable relationships, antisocial attitudes, lack of concern for others, identity disturbance, and needing to portray himself as self-sufficient and capable.  He meets criteria for borderline and antisocial personality disorders.  His neglectful, abusive and disadvantaged childhood has been a major contributor to his personality dysfunction and developmental difficulties.

10'22.  His mild intellectual disability and severe personality disorder were obviously present as they are lifelong conditions at the time the offences occurred.  If he did commit the offences, it is likely that his emotional instability and impulsivity, which are core to his personality disorder, were significant contributing factors.  23.  He requires support services to help him function in the community, however his intellectual disability and personality disorder will likely make rehabilitative efforts difficult.  He is very difficult to engage with help and supports due to his personality disorder.  24.  He has periods where he struggles to cope both in the community and in custody.  Being in custody does not in itself cause a worsening of his mental condition, but some aspects of being in prison make him vulnerable to causing injury to himself'.

11I accept that at the time of this offending your mental health was deteriorating.  You had been released from custody in April 2018.  You were concerned for your mother's wellbeing having witnessed an attack upon her in July 2018.  You received limited professional assistance.  You had engaged in acts of self-harm in the first half of August 2018.  This offending was in that context.  It appears to have followed a pattern described by the forensic psychologist, Dr Gee, in his earlier report dated 19 April 2018.  He states, '21.  Mr Burt presents with a background diagnosis of attention deficit hyperactivity disorder, conduct disorder, reactive attachment disorder, dysthymia and anxiety.  22.  Mr Burt has an enduring history of dysfunctional self-regulation and repeated difficulties coping with distress, exhibiting poor emotional coping across most domains of his life.  His minimal capacity to regulate, affect, and/or self-soothe has resulted in an array of externalising behaviours across time including self-harm, harm to animals, serious harm to others (including the assault of care staff), fire lighting, aberrant inappropriate sexual behaviour, and property damage'.

12These observations of Dr Gee were most prescient.  The following opinions from Dr Gee, whilst expressed in April 2018, are also relevant,  '72.  In relation to Mr Burt's history of violent offending, his behaviour is clearly in line with the under regulation/disinhibition of an approach-automatic pathway, a pathway characterised by acquisitional goals and impulsivity in behaviour.  Thus, Mr Burt does not attempt to refrain from offending, but rather fails to control his behaviour, responding rapidly to situational cues based on cognitive and behavioural scripts (which are often outside his immediate attention or control) that support and facilitate his violent behaviour. 

13Accepting that Mr Burt lacks a degree of insight into the needs of others, he experiences further disruptions in functioning (through a pre-occupation with obtaining self-gratification, substance use, or regulating emotional states through the use of aggression and control over others) that override such interests.  Overall, Mr Burt's offending appears underpinned by an enduring difficulty obtaining a stable and meaningful sense of autonomy.  That is, he struggles to reflect on what is in his best interests, and to develop strategies that promote such interests while avoiding harm to himself and others.

14'73.  Generally Mr Burt demonstrates a limited and conflicted appreciation of his mental health needs and struggles to comprehend his role in the process of self-regulation.  Moreover, he presents with a concrete and inflexible comprehension of his risk profile and potential future risks, having a compromised understanding of the need to self-monitor cognitive, emotional and behavioural states to avoid future aberrant behaviour.  Further, it appears that Mr Burt's impaired mental functioning impacts adversely on his social moral reasoning, consequential thinking, insight and judgment.  With respect to Mr Burt's understanding of his aberrant behaviour, he struggles to appreciate the links between his impaired mental functioning and history of violence.  Similarly, his impaired mental functioning underpins marked difficulties in self-regulation with respect to his cognitive, emotional and behavioural control'.

15I accept these opinions of Dr Darjee and Dr Gee.  I accept that the principles 1, 3, 4 and 5 enunciated in Verdins case apply.  I accept a causal relationship between your mental conditions and offending, and that this does reduce, to an extent, your moral culpability.  In the circumstances I find that there ought be a sensible moderation of the weight to be attached to general and specific deterrence.  I also accept imprisonment will weigh more heavily on you than it would on a person in normal health.  I accept you have attempted to self-harm approximately eight times whilst you have been in custody since your arrest.  There is no up-to-date evidence that there is a serious risk of imprisonment having a significant adverse effect on your mental health.

16I assess your prospects of rehabilitation as being cloudy.  I agree with the comments of Dr Darjee in respect of the difficulties of rehabilitating you.  Upon your eventual release from custody, you will need much support and assistance.  Against these matters in mitigation, however, your actions were very serious indeed.  These offences were committed within a short space of time and involved a similar pattern of conduct.  You smashed windows to gain access to properties and then set those properties alight.  The damage to the house was considerable and it was most fortuitous that there was not more damage to the sporting club rooms.  The damage was gratuitous, there was no explanation for any of the offending.  The arson offences posed a risk to other members of the community including emergency workers.  It is an aggravating factor that this offending occurred whilst you were undergoing the community corrections order imposed by Her Honour Judge Pullen.

17There are no victim impact statements.  You have admitted before me numerous prior convictions.  There are approximately 23 court appearances between 5 May 2008 and 21 September 2017 involving convictions for a vast array of offences.  The nature of some of these prior convictions particularly in respect of arson, criminal damage and aggravated burglary is highly relevant to my task of sentencing you today. 

18The prosecution have produced a table summarising some of the relevant prior convictions.  The following matters were dealt with in the Ballarat Children's Court:  16 November 2009, criminal damage by fire, arson and others; 17 May 2010, intentionally cause a bushfire by two, criminal damage and others; 12 August 2010, criminal damage by fire, arson and others; 14 November 2011, criminal damage by fire, arson by - times three, criminal damage times two and others; 19 March 2012, intentionally damage property, criminal damage and others; 18 April 2012, criminal damage and others; 15 October 2012, criminal damage; 20 December 2012, criminal damage and others; 11 February 2013, recklessly cause a bushfire.  The following matters were dealt with at the Ballarat Magistrates' Court:  26 May 2015, criminal damage and others.  And the following matters were dealt with at the Melbourne County Court:  on 21 September 2017, aggravated burglary, criminal damage and others.  These matters were the subject of the sentence I have referred to from Her Honour Judge Pullen.

19You have also breached court orders in the past.  I have had regard to the principle of totality.  Pre-sentence detention is agreed at 526 days.  As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Whilst the weight to be attached to both specific and general deterrence is to be sensibly moderated, they do remain relevant sentencing considerations.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. You are to be sentenced as a serious arson offender in respect of Charges 2 and 5. I direct that pursuant to s.6F of the Sentencing Act that it be entered in the records of the court that I have sentenced you in respect of these charges as a serious arson offender within the meaning of the Act.

20I do consider a period of imprisonment is justified in respect of Charge 2 and Charge 5. Pursuant to s.6D, I must therefore regard the protection of the community from you as the principle purpose for which these sentences are imposed. I must decide in your case whether, in order to achieve that purpose, sentences longer than that which would be proportionate to the gravity of the offences should be imposed. In all the circumstances, I do not consider it appropriate to impose disproportionate sentences. Pursuant to s.6F, I must direct that the sentences be served cumulatively on any uncompleted sentence or the sentences I impose on this date unless I direct otherwise. In all the circumstances, I consider it is appropriate to make orders for partial cumulation. I note that strictly speaking I ought direct a measure of concurrency (see Lisle v Queen [2017] VSCA 4, footnote 4). However, as there are other sentences with orders for partial cumulation, I shall for practical consistency make orders for partial cumulation.

21Your counsel submitted I ought consider a sentence of imprisonment combined with a community corrections order.  It was submitted on behalf of the prosecution that the only appropriate sentence was a term of imprisonment with a head sentence and non-parole period.  I have considered the imposition of a combined sentence however I am not satisfied this is appropriate having regard to the relevant sentencing principles of community protection, deterrence, denunciation, and just punishment together with your past breaches of court orders, including the fact that these offences breached the community corrections order imposed as part of a combined sentence by Her Honour Judge Pullen.  I agree with the prosecution on the appropriate disposition. 

22The most serious offence is Charge 2, arson.  The sentence on Charge 2 will be the base sentence.  I have differentiated between the two arson charges on the basis of the amount of damage caused.  However, as I have noted, this was really fortuitous.  Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows:  Charge 1, convicted and sentenced to 18 months' imprisonment; Charge 2, convicted and sentenced to 2 years and 6 months' imprisonment; Charge 3, convicted and sentenced to 6 months' imprisonment; Charge 4, convicted and sentenced to 18 months' imprisonment; Charge 5, convicted and sentenced to 2 years' imprisonment.  The base sentence is the sentence of 2 years and 6 months' imposed on Charge 2.  I direct that six months of the sentence imposed on Charge 1, three months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, and 12 months of the sentence imposed on Charge 5 be served cumulatively upon the sentence imposed on Charge 2 and upon each other, otherwise the sentences be served concurrently. 

23The total effective sentence is 4 years and 9 months' imprisonment. The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist. For that reason, it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision. In all the circumstances, I direct that you serve a minimum terms of three years before becoming eligible for parole. As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is five to six days, which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court. Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period I would have imposed but for the plea of guilty is six years with a non-parole period of four years.

24COUNSEL:  As Your Honour pleases.

25HIS HONOUR:  Does that cover all the formalities? 

26COUNSEL:  It does.

27HIS HONOUR:  I will just stand down temporarily whilst the prisoner is removed and then start the appeal list.  Thank you.

‑ ‑ ‑