Director of Public Prosecutions v Burt

[2019] VCC 252

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

AT MILDURA
CRIMINAL JURISDICTION

CR 18-01378

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANNON BURT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	6 March 2019
CASE MAY BE CITED AS:	DPP v Burt
MEDIUM NEUTRAL CITATION:	[2019] VCC 252

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O’Doherty	Office of Public Prosecutions
For the Accused	Mr G. Davis	Hilton-Wood Solicitors

HIS HONOUR:

1Shannon Burt, you have pleaded guilty to one charge of aggravated burglary and one charge of intentionally causing injury.  Those crimes carry maximum penalties of 25 years and ten years respectively.

2You have pleaded at the earliest reasonably opportunity in all these circumstances and I accept that your plea of guilty is at least now accompanied by appropriate remorse.  You also of course must get the utilitarian benefit of that plea.

3You have a very limited criminal history which is of no real concern to me in these circumstances.

4A summary of the offending is that you were in a relationship and your partner's daughter was staying with a Mr Blair.  I do not think I need to go into all the detail of that other than the daughter was seen to have an injury and that would seem to have affected you.

5In any event, on 2 December, Mr Blair had been visiting his father and you and your partner had returned from Adelaide.  It was that point in time that the injury was observed. She said Mr Blair caused it.

6At approximately 8.38 pm that night, you and your partner left the house in your car and attended Mr Blair's residence.  You, Mr Burt, approached the front door, looked inside and had your ear to the door.  You were met by Mr Blair who had gone outside to have a smoke.  He previously knew of you but had not actually met you.  He saw your partner come from the rear of the premises and you asked him if you could have a talk about Leticia Scott, your daughter.  At that point in time, you said that your partner was waiting in the car.

7Whilst outside the house, both you and Mr Blair discussed her and why he was kicking her out which appears to be part and parcel of all this.  Your partner asked to grab the daughter's belongings.  You then tried to punch Mr Blair to the face but he blocked it.

8The situation was diffused and apparently all three of you had cigarettes.  You apologised and asked if you could come inside to talk and grab the belongings.  You moved towards the door.  Mr Blair, I understand, already told you he did not want either of you in the house and that he would get the property.  He went inside his house and shut the sliding door.

9He grabbed some of her property, went to the bedroom and was about to come out when he heard the sliding door open.  He went directly to it, as I understand it.  The both of you were in the laundry and you were leaning on the laundry bench.

10You moved back so that Mr Blair could pick up some belongings and as he bent over to do that, you punched him to the left side of his head.  He then grabbed you in a headlock and the pair of you wrestled to the hallway floor near the front door.  Your partner was pulling Mr Blair's hair apparently while he was on the floor.

11Realistically, that is the extent of your involvement in this so far as the Crown can prove it.  The aggravated burglary is you entering that backdoor with the intention of assaulting.  I accept that your plea of guilty to that has real relevance in this situation because without that plea, it might have been a difficult charge to sheet home.  The intentionally cause injury, that being the assault, would have been a particularly easy one to sheet home I think but it is the when you formed that intent that may have been a cause for dispute.  That goes very much in your favour.

12It was after that that your partner stabbed Mr Blair a number of times in the back and you have appeared to have been still wrestling and losing the fight on all accounts.

13While all that occurred, that is not something that you fall to be sentenced for but as I indicated to the course of other counsel during the course of the plea, that is one of the reasons that aggravated burglaries are treated with such seriousness by the courts, people will defend themselves in their own home and the whole thing can get totally out of control.  This scenario is in no way, shape or form Mr Blair's and he, in a physical sense, ends up suffering significant consequences.

14As I make it very clear, I am not sentencing you for that.  I am just sentencing you for what occurred at the start of it.

15You are now around 30 years of age.  You have a child and a number of matters are pertinent.  You do have a very limited criminal history.  Mr Purchase, psychologist, has spoken to you.  Your childhood was not remarkable.  You went to a local school.  You were raised in a loving and caring family.  You had no childhood difficulties.  You went to Year 12.  You did an apprenticeship in boiler making and although the relationship with the earlier child's mother ceased, you then worked as a boilermaker for a number of years and at Roxby Downs mines before moving to Perth.

16Up until this occurred, you have had a good work record and you had only been in this relationship for a few months, as I understand it.

17Some years ago, you have insulin-dependent.  You suffered serious eye problems which almost caused total blindness.  As I read the materials, no surgery has been needed now for some seven years and whilst that has left you with the residual difficulty of having shortened vision, it would appear that there is nothing in that which is a real ongoing concern and it is something that has been monitored by medical professionals.

18When psychologist Mr Purchase saw you, he said,

"I do not believe that Mr Burt would currently qualify for any psychiatric diagnosis.  He presents as a slightly conservative young man with a personable quality about him.  He reported that he is normally mild-mannered and does not have a history of violence or aggression.  He reported a pub fight at age 18 as his only brush with the law and has been pleased to sever contact with his former girlfriend.

"The overall impression is of a mild-mannered young man who has unwillingly [well, I do not know about that] found himself in a situation not of his making or choosing.  He has clearly been shaken by the experience of being in remand and clearly felt that he does not fit into that environment.  He stated that he will do anything in his power to avoid repeating his most recent experiences of being locked up.

"Mr Burt has received excellent support from his parents and siblings.  His most pressing matter at present is to find meaningful work and to care for his eyesight.  He should still be able to make a useful contribution to the society."

19I accept that.  The fact of the matter is you have now done ten months' imprisonment.  I have absolutely no doubt someone such as yourself, would find remand a very frightening, an ongoingly frightening set of circumstances.

20I am confident that you have rehabilitated since all this occurred and I am confident the risk of you reoffending should be slight.  I am very mindful of the victim impact statements that have been tendered in this matter. They tend to relate more to your co-accused than to you but the fact of the matter is that gaol would have been imposed by me in any event in your set of circumstances.  You cannot simply go into somebody's house with the intention of assaulting them and then do it.

21So taking all those matters into account, on the two charges, you are sentenced to be imprisoned for an aggregate period of 299 days and I direct that 299 days be reckoned as having been served under this sentence.

22Pursuant to s.6AAA of the Sentencing Act, so that but for your plea of guilty, I would have sentenced to be imprisoned for a period of 16 months with a minimum term of ten.

23Are there any other orders I have to make?  No.  All right.  You are free to come out of there now.  That is it.  I have made the sentence and the sentence is concluded so you are free to leave.

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