Director of Public Prosecutions v Burt
[2017] VCC 1359
•21 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01028
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON LEE BURT |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 21 July and 14 September 2017 | |
DATE OF SENTENCE: | 21 September 2017 | |
CASE MAY BE CITED AS: | DPP v Burt | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1359 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Mills (1998) 4 VR 235
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms I. Ruschena | Office of Public Prosecutions |
| For the Offender | Mr J. Moore | HBM Law |
HER HONOUR:
1 Brandon Burt, you have pleaded guilty to one charge of aggravated burglary, the maximum penalty applicable to that offence being 25 years’ imprisonment, one charge of being a prohibited person in possession of a firearm, the maximum penalty being ten years’ imprisonment, and one charge of criminal damage, the maximum penalty being ten years’ imprisonment.
2 These crimes arise out of events which took place on 15 January 2017. It is not necessary for me to recount in great detail the facts of this matter, as they were opened in some detail by the learned prosecutor, consistent with the prosecution opening (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing.
3 I turn to a summary of your offending. You were born on 11 October 1995 and at the time of this offending were 21 years of age and at sentence, or at least at your last plea hearing, you were also 21 years of age.
4 There is a co-offender, Brendan Collins. He was born on 5 June 1993 and his matter was proceeding via a contested committal on 22 August 2017 at Ballarat Magistrates’ Court. It is not your intention to give evidence for the prosecution against Mr Collins at that hearing or in any trial.
5 Turning to the circumstances of your offending. On 4 January 2017, you and Collins went to Dwayne Dover’s house at 30 Wattle Avenue, Wendouree. You were there for some time drinking, before you left together and went to Collins’ house at 57 Wattle Avenue, Wendouree. Once at the property, the two of you collected a shotgun, a knife and a jemmy bar. You both then walked to a house located at 19 Boronia Gove, Wendouree, arriving at approximately 1.20 am on Sunday, 15 January 2017.
6 When you got there, there were three people at home. Glen Jelly, who was asleep on the mattress in the lounge room, Jelly’s step-father, John Dunn, also asleep on the couch in the lounge room, and Jelly’s mother, Cathy McDonald, asleep in her bedroom.
7 At the house, Collins kicked the front door open, causing damage to the door and entered the house holding a jemmy bar and a knife. You also entered the house and stood in the doorway. You were holding a shotgun.
8 Collins confronted Jelly over an incident that had occurred in November 2016 involving Dover. Collins went into the spare room and grabbed a Play Station 4 console and put it up his jumper. During that, you stood at the front door, holding the shotgun in your hands. At one stage you pointed the shotgun in the direction of Jelly.
9 Both of you left the house on foot and returned to Dwayne Dover’s house.
10
You were interviewed at the Ballarat Crime Investigation Unit by police on
16 January 2017 and during that interview, you admitted to attending the address and being in possession of the shotgun, although denied pointing the gun at Jelly. You said you were acting under duress and believed that if you did not comply with Collins, you would have been killed.
11 At the end of that interview you were charged and remanded in custody.
12
You have admitted an extensive, troubling and relevant criminal record for someone your age and your counsel, Mr Moore, referred to your earlier prior criminal history. All but the most recent two appearances involved dispositions of the Children’s Court. In relation to the prior matter of 26 May 2015, you were ordered to serve your first period of imprisonment of 12 months for offences of criminal damage and committing an indictable offence whilst on bail. The
non-parole period was fixed at six months and I was advised you completed
11 of the 12 month sentence before being paroled. You did not breach parole.
13 Returning to your criminal history, it is extensive and very troubling for someone so young.
14
Your first appearance at Sunshine Children’s Court was on 5 May 2008 on
a number of charges, including unlawful assault and criminal damage. You were, without conviction, placed on an undertaking.
15
You then appeared at Ballarat Children’s Court on 23 February 2009 on
a number of charges, for offences including unlawful assault, damaging property and recklessly cause injury. You were, without conviction, released on an undertaking.
16 On 15 June 2009, you appeared at the Ballarat Children’s Court on a charge of criminal damage. Without conviction, the charge was found proven and dismissed. You were then released on an accountable undertaking commencing on that date, to conclude on 22 February 2010. You then appeared on 24 August 2009 on a charge of unlawful assault. Without conviction, the charge was found proven and dismissed. You were again released on an undertaking commencing 24 August 2009 for six months until 23 February 2010.
17 Your next appearance was on 16 November 2009 for a number of offences, including assault, criminal damage by fire (arson), intentionally cause injury, and making a threat to kill. Without conviction, you were placed on probation for a period of one year to 15 November 2010.
18 On 17 May 2010, you were dealt with for breaching a probation order which had been imposed on 16 November 2009. On 17 May 2010, you were released on a youth supervision order for a period of 18 months with conditions, including that you continue to consult with Dr Adam Deacon.
19 You appeared at the Ballarat Children’s Court on 12 August 2010 on charges of criminal damage and reckless conduct endangering serious injury. Without conviction, you were released on a youth supervision order for 18 months. That same day, you were dealt with for breach of a youth supervision order previously imposed on 17 February 2010.
20 You next appeared at Ballarat Children’s Court on 16 December 2010 for threat to inflict serious injury. Without conviction, the charge was found proven and dismissed. You were released on an undertaking commencing on that date for a period of six months until 5 June 2011.
21
On 14 November 2011, you appeared at Ballarat Children’s Court for breach of a youth supervision order and without conviction, were released on a youth supervision order for a period of 18 months to 11 February 2012. That same date, 14 November 2011, you appeared on other charges, as set out and in respect to the criminal damage by fire and three charges of arson, you were detained in a youth justice centre for nine months. You were released on
a bond and also a youth supervision order.
22 You then appeared at Ballarat Children’s Court on 19 March 2012 for intentionally damaging property, criminal damage and unlawful assault. You were put on probation.
23 On 18 April 2012, you appeared at Ballarat Children’s Court on charges of criminal damage and unlawful assault. Without conviction, you were released on probation.
24 On 30 May 2012, you appeared at Ballarat Children’s Court on a charge of unlawful assault. Without conviction, you were placed on probation for a period of six months.
25 On 15 October 2012, you appeared at Ballarat Children’s Court on a charge of criminal damage. Without conviction, you were released on an undertaking.
26 On 20 December 2012, you appeared at Ballarat Children’s Court on charges of criminal damage and unlawful assault. Without conviction, you were placed on a youth supervision order for 12 months.
27 On 11 February 2013, you appeared at Ballarat Children’s Court on a charge of recklessly causing a bushfire. You were ordered to be detained in a youth justice centre for three months.
28 On 20 August 2013, you appeared at Ballarat Children’s Court on a charge of knowingly possess child pornography. A forfeiture order was made without consent.
29 On 23 August 2013, you appeared at Ballarat Children’s Court for breach of the youth supervision order which had been imposed on 20 December 2012. You were ordered to be detained in a youth justice centre for three months.
30 Also on 23 August 2013, you appeared at Ballarat Children’s Court on charges involving sexual offending and transmitting child pornography, incest, sexual penetration of a child under 16, amongst other matters. You were convicted and ordered to be detained in a youth justice centre for 12 months.
31 You most recently appeared at Ballarat Magistrates’ Court on 28 July 2016 for failing to report the name of a child contact. There were ten charges and you were fined $200, without conviction.
32 To say your criminal history is appalling and very troubling is an understatement, given in particular, your age.
33
I discussed with Mr Moore your significant number of offences involving
violent-type offending, also the extensive nature of your offending (ie: over years). Whilst he urged applicability of the principles in R v Mill’s[1], your criminal history does not do you any credit at all and I remain concerned about your rehabilitation prospects. I am also aware of the importance, however, of rehabilitation of young offenders, and you are a young offender.
[1] (1998) 4 VR 235
34 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial and in particular, I refer to the victims of your offending, in particular, those present at the house relevant to Charge 1. He further submits and I accept, your plea of guilty, when combined with admissions you made to the police regarding presence and possession of the shotgun in your record of interview, demonstrates some remorse by you. I accept your plea of guilty also indicates some remorse for your offending.
35 A chronology was placed before me which indicates you pleaded guilty at the earliest opportunity. On 30 March 2017, at the first committal mention, the matter was adjourned and at the second committal mention on 11 May 2017, the matter resolved.
36 No victim impact statements were before me.
37 At the time of your plea hearing on 21 July 2017, you had been in custody since January 2017, a total then of 186 days.
38 Counsel who appeared on your behalf, Mr Moore, prepared a written outline of submissions for your plea hearing and also addressed those during your pleas.
39
Regarding your role in this offending, he conceded yours was serious offending. He was correct in that assessment. He, however, urged your role was less than that of the co-offender, in that the weapons were all obtained from the
co-accused’s premises, the co-accused broke the door to force entry and the co-accused was the active offender inside the premises. Your participation, however, in my opinion was important, in that you effectively subdued the residents, in particular those in the lounge room, by the shotgun.
40 You maintained you were acting under a degree of duress at the time of your offending. As you instructed, Collins demanded you assist with the burglary and threatened you with a knife if you did not assist. I note in this regard, Collins has an extensive and relevant criminal history and is a couple of years older than you.
41 Mr Moore, in addressing the seriousness of your offending, acknowledged the decision of DPP v Meyers[2]. I discussed with him circumstances relevant to assessing the gravity of aggravated burglary and your offending (paragraph 48).
[2] 44 VR 486
42 Mr Moore, however, urged that looking at your offending in an objective manner, it fell at the lower end of the spectrum, albeit it was with a weapon. There was no suggestion, he urged, that you used it other than to point it in the direction of Jelly and even whilst you were doing that, he submitted Dunn was able to walk straight past you and to a neighbour’s place to raise the alarm, apparently not deterred by you holding the weapon.
43 Mr Moore submitted that your involvement in this offending was consistent with your description of it, that is, you froze when you entered the property with the gun and looked scared.
44 There are a number of concerning aspects about your offending and these involve the fact that you entered the property with a shotgun. In my opinion, whilst you did not break the door down, you were nevertheless a co-offender with Mr Collins, aware of his intention to break into the property at the time you attended.
45 The prosecution submitted your offending did not fall at the lower end of the spectrum, referring to the presence of a firearm pointed at one of the victims. Addressing Meyers, Ms Churchill noted a number of features of your offending which she urged placed your offending as serious and not at the "lower end" of the spectrum. Again by referring to Meyers (paragraph 48).
46 In my opinion, your offending regarding Charge 1 is not at the low end, rather closer to mid-range.
47 I was provided with details of your background and history by your counsel. You were born on 11 October 1995 and Child Protection Services became involved in your life when you were 5 weeks of age. At that time, you were removed from the family, due to maternal physical abuse. Thereafter, you had numerous unsuccessful foster placements.
48
Your relationship with your mother remained difficult, with mutual family violence intervention orders between both you and she. In a report from
Mr Stanislawski, to which I shall shortly refer, he identified contact with your mother as a precipitating factor to your offending, which he confirmed in oral evidence before me on 14 September 2017.
49 Your finances were managed by the State Trustees.
50 You were physically disabled regarding your hands, which had been a source of ridicule throughout your life. Your two main goals in life were to get work and increase contact with your family.
51 Mr Moore referred to your young age at the time of this offending and sentence, 21 years of age then and now. Mr Moore submitted when sentencing a youthful offender, rehabilitation was important in sentencing. He is correct and I am of mindful of decisions such as Mills. However, as the courts have also said in application of Mills' case, it is not of usual or automatic application and will depend upon the circumstances of the case and the circumstances of the offender.
52 In R v Connolly[3], Coldrey J referred to the principles in Mills and stated that:
“No doubt a sentencing court will endeavor to implement these principles as far as is possible in sentencing a youthful offender, but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and the just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community, may need to be reflected in the sentence imposed.”
[3] [2004] VSCA 24
53 This was confirmed in Gosland and McDonald v The Queen[4]:
[4] [2013] VSCA 269
“It is apparent from His Honour’s sentencing remarks that he paid close attention to the principles essayed in R v Mills. As His Honour observed, however, the premium which is placed on the rehabilitation of youthful offenders must be balanced against other sentencing considerations, such as general and specific deterrence, denunciation and community protection. More specifically, as Batt JA explained in R v Lawrence, the general propositions enunciated in R v Mills are just that, general propositions and they are not to be treated as if they were of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence, as well as of the offender. That is particularly so where a sentencing judge is required to deal with a case of gratuitously violent offending in a public place by youthful offenders under the influence of alcohol or drugs, especially where, as here, the offender has had previous opportunities to rehabilitate through community-based orders, the youth justice centre orders and in effect, has thumbed his nose to those chances. Additionally, as Batt JA said, the benefits that flow to youthful offenders diminish the older they become.”
I, of course, note the difference in offending in your case.
"Further In R v Mills, is still referred to in the decision of Gosland, the Court of Appeal Batt JA expressed his approval of the proposition that the youth of an offender should be a primary consideration for a sentencing court and that usually rehabilitation is far more important than is general deterrence. His Honour pointed out, however, that that was particularly so in circumstances where a youthful offender is a first offender."
Which is not the case with you.
Further, in R v Bell, Batt JA said:
"The general propositions accepted in R v Mills are just that, general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstances, including, it is to be noted the circumstances of the offence, as well as those of the offender.”
54 Mr Moore tendered a report from Mr Ian MacKinnon, Forensic and Consultant Psychologist, dated 16 July 2017, who assessed you most recently at Port Phillip Prison on 7 July 2017. Mr MacKinnon noted your prior history of court appearances for concerning behaviour, as do I, and extending back to 2008. He also referred to, and I also noted, various sentencing dispositions imposed in the past, including probation, undertakings, youth supervision orders, youth justice centre incarceration and also recently, imprisonment. None had stopped you from further offending.
55 Much of the information referred to by Mr MacKinnon in his report was obtained from Mr Peter Stanislawski, Forensic Psychologist, who as I say gave evidence before me on 14 September 2017. Further details were provided regarding your background. You were raised in the Ballarat area by your biological mother, although never knew your father. You grew up in a single-parent environment, characterised by social and cultural disadvantage, abuse and conflict and reference was made to involvement of the Department of Human and Health Services (DHHS).
56 Despite the conflict between you and your mother, always an intense and unstable relationship, your mother was the central figure in your life.
57 You had been diagnosed with an intellectual disability, confirmed by several professionals. Your disability severely impaired your language skills and the adverse impact of your highly unstable family life. You possessed only rudimentary English literacy skills. You did not have a significant history of employment. You reported general good physical fitness and no history of treatment for serious medical issues, despite reference to deformed hands. You reported a long history of self-harming when particularly distressed and admission to a psychiatric unit when you were 10 years of age.
58 Mr MacKinnon referred to you having long been supported by Disability Services Victoria, other welfare and medical professionals. I was advised on 14 September 2017 that that continued. This, I note, included having previously been on a Treatment Plan and Security Treatment Order. Details of that plan/order were subsequently provided at your further plea hearing on 14 September 2017.
59 You described a long history of poly-substance abuse, starting in your adolescence, including use of alcohol, cannabis, speed, ice, LSD and other drugs. You said you only used illicit drugs occasionally, adding “Drugs get me into trouble”. I note in recent documents filed on 14 September 2017, you reported having consumed alcohol and illicit drugs at the time of this offending.
60 Since you had been remanded at Port Phillip Prison on the charges before me, you had been housed in the Marlborough Unit as a protection prisoner and had not received any personal visits, other than from your DHHS case manager. You had made regular phone calls to your mother. I note, of course, restrictions upon you and your liberty of having been so placed in protection.
61 You reported being bullied and harassed in prison and that you had engaged in "self-harming" at Port Phillip Prison. Despite this, you had been assigned the role of a unit vacuum billet and had also engaged in gardening work and played sport. Upon completion of your sentence, you were hoping to return to live at Brown Hill and getting a job.
62 At the time of Mr MacKinnon’s assessment, he concluded you suffered with symptoms of intellectual disability and borderline personality disorder. Your intellectual disability was in the mild range, impairing your language skills in particular and hindering your powers of comprehension and processing of abstract information. You appeared to suffer with many problematic symptoms of borderline personality disorder.
63 In Mr MacKinnon’s opinion, your clinical history has been complicated by significant developmental traumas, as he set out within his report (page 4). They included significant depression and anxiety, mood swings and anger management difficulties.
64 You described yourself as being a “follower, easily led and manipulated by others”.
65 In Mr MacKinnon’s opinion, you did not have the ability to improve your life on your own, although despite your offending history, you did not possess an entirely anti-social or clinical disposition.
66 It was likely you would continue to be deprived of a stable and available mother/parent figure and thus you remained psychologically labile and sometimes volatile. The most available and positive figures in your life had been professionals, who had to date, been involved in trying to assist you.
67 At the time of the offending, in the opinion of Mr MacKinnon, you were suffering with your intellectual disability and borderline personality disorder, and when under the influence of those disorders your ability to reason and make sound judgement was probably “significantly degraded”. I note your recent report of also having consumed alcohol and drugs. While your reference to “duress”, he opined, appeared to be a gross exaggeration, it was likely you had been manipulated and/or led into the offences by your more culpable co-offender (page 5 of his report).
68 At the time of assessment, you appeared generally remorseful for your offending and in the opinion of Mr MacKinnon, you presented with a high level of motivation to comply with a new supervised treatment order. If you were further imprisoned, you would be harassed, bullied, intimidated and manipulated by other more capable prisoners and your tendency to self-harm would need to be continually monitored.
69 Also before me was a decision of Deputy President Nihill of the Victorian Civil and Administrative Tribunal Human Rights Division, dated 10 April 2017 and attached to that a report of Mr Stanislawski, dated 19 April 2017. Mr Stanislawski, in oral evidence, confirmed many of his opinions in that report, to which I shall now refer.
70
Mr Stanislawski also referred to your background information. You had been
a client of disability services and lived in a supported accommodation unit in Brown Hill. You had been previously placed on a supervised treatment order in April 2014. I note at the time of this offending, you received 24-hour active support at your accommodation.
71 You fell into the mildly intellectually disabled range.
72 Despite the chronic conflictual relationship with your mother, Mr Stanislawski noted your family appeared to be central to your life.
73 Mr Stanislawski also noted your extensive criminal history, dating back to 2007, when you were 11 years of age and referred to a number of occasions, in particular, when you were involved in fire-related charges.
74 On your future release from prison, you spoke of a number of goals related to work and independent living with your partner, whom you met at Hopkins Correctional Facility. I was advised by Mr Moore that relationship was no longer.
75
Mr Stanislawski noted that you had a history of very poor compliance with supervision at the time of the arson offence in April 2015 and when subject to
a supervision treatment order, also your recent charges alleged to have been committed while being subject to the supervision treatment order. In addition to that, you were absconding at night, fully aware that that was contrary to the supervision treatment order and once your parole period expired and you were not subject to legal consequences, you showed even less regard for your supervision treatment order. Further, it was noted you had not engaged well with treatment efforts in the past in a process that was protracted and you were often non-compliant. You last attended treatment in August 2016, resisting efforts to re-engage. You required high intensity treatment and were likely to vacillate in your compliance, significantly impacting on risk. These opinions of Mr Stanislawski concern me when assessing your rehabilitation prospects, risk of future offending and the appropriateness of an order directing treatment by you.
76
You also expressed pro-criminal attitudes, including in particular,
a longstanding attitude of revenge against DHHS. When a shift in attitude occurred, it was very short-lived. You also had a disregard for authority.
77 In the opinion of Mr Stanislawski, while there were a number of triggers to your offending pathway, the main trigger appeared to stem from your contact with your mother. Despite being able to speak about the negative impact your mother had on you, you were unable to elaborate on any strategies to deal with your problems and reactions, again relevant to assessment of rehabilitation prospects and risk
78 Despite numerous episodes of re-offending and counselling, you continued to offend.
79 Mr Stanislawski concluded you had a longstanding history of poor emotional regulation and repeated failure to cope with distress. You almost had no ability to self-manage your emotions. As at the time of his 2017 report, you continued to display aggression and react emotionally to stress and did not show evidence of wanting to control your anger.
80 You had poor problem-solving skills and manipulated your environment to get what you wanted. You were also prone to aggression and blame, pre-occupied with suing DHHS over past abuse. You used aggression and intimidation to meet your needs.
81 Despite having a number of members of your family present in your life, foster placements had, in the majority, failed. There were few people with which you had a long period of stable involvement.
82 As to protective factors, you had shown some potential to form relationships, predominantly with staff, however had a tendency to refuse to attend work. In the Marlborough Unit, you struggled in your relationships with other prisoners.
83 At the time of his 2017, report you had been coping well in custody in the Marlborough Unit, not showing signs or problems relating to other prisoners.
84 Turning to your substance abuse, you self-reported that ice had been a direct contributor to your offending, however, Mr Stanislawski noted there was no evidence to substantiate that explanation.
85 You had a longstanding history of behaving impulsively, your education has been limited and at times there has been social isolation and your limited preparedness to be involved in recreational and leisure activities.
86 You had previously been diagnosed with ADHD and medicated for it, also diagnosed with conduct disorder.
87 Despite being well supported by staff, you had a history of offending while supported. While in the opinion of Mr Stanislawski, there was little indication that knowledge deficits could have contributed to your risk of offending, it was clear that knowledge was not a protective factor with regard to use as an impediment to offending, both recently and in the past.
88 Your accommodation was centred around your needs, with a strong focus on maintaining community care, with your accommodation at Canterbury Street.
89 While you had shown a disregard for your Supervision Treatment Order (STO) prior to being incarcerated for these present charges, you said you were willing to return to Canterbury Street and they would support you.
90 You had essentially been non-compliant with the STO. Despite that, he considered it had some protective benefits (page 19 of his report). He recommended the STO at that time, be renewed and that you return to Canterbury Street. Ultimately he thought it would be difficult for you to return to Canterbury Street with new staff, given your history of problems relating to staff, including past violent behaviour towards them. Your current risk rating placed you at a higher risk range for future offending behaviour, with few protective factors and your compliance with supervision, one of the key factors associated with your past and current alleged offending.
91 Your accommodation at Canterbury Street and your relationship with core staff did offer protective benefits, although there was concern that while you were willing to be subject to another STO, your recent history of non-compliance indicated you may not be able to adhere to the recommendations.
92 I note, as I have said, it would appear that that STO was, subsequently to that report, revoked by Deputy President Nihill at VCAT.
93
There was also an earlier report before me from Mr Stanislawski, dated
17 November 2015.
94 Mr Stanislawski, in his evidence before me, confirmed your offending whilst on the STO, including absconding from your accommodation just prior to that offending. Mr Stanislawski had been treating you for approximately four years. He observed that there were clear indications in your behaviour leading up to your offending which he thought could be identified and action taken to prevent escalation to offending stage. There would be indicators "things were happening", he told me in evidence.
95 Mr Stanislawski referred to you responding positively regarding your behaviour and counselling when there were clear consequences that were enforceable, such as when on a parole order. Mr Stanislawski referred, in essence, to the STO as not having any "teeth" and you knew that there were no ramifications for your inappropriate behaviour. Mr Stanislawski gave evidence that you responded well to orders that had consequences, eg: parole, and he anticipated you would respond well to a community corrections order and conditions that would be attached to any such order.
96
Mr Stanislawski gave evidence that, should a justice plan be part of
a community corrections order, if imposed, he would continue his involvement with you. Should you not comply with the order conditions, ie community corrections order conditions, Mr Stanislawski understood he would be required to advise Corrections, such as if you did not engage and if there were indicators of your risk increasing.
97 There was also a report prepared by Dr Katie Anson, neuropsychologist, dated 22 August 2011. That was somewhat dated and relevant to her then neuropsychological assessment. She concluded you had a complex social history, in particular while living with your biological mother and thereafter being placed in a number of foster care placements, which had ultimately broken down, due to your aggressive behaviour. At the time of her report, you were living in a residential care placement, supervised by two attendant care workers at all times.
98 You were born with a congenital deformity of your hands, to which you had undergone a number of surgical procedures, although it would appear from the report, no recent surgery.
99 Reference was also made by her to your prior diagnosis of ADHD, reactive attachment disorder and conduct disorder, also reference to you having depression and anxiety difficulties and being prescribed medication.
100 You had a history of high levels of challenging behaviour, including verbal and physical aggression. Reference was made to your then number of convictions for criminal offending, including assault and arson. Reference also made to your self-harming behaviour.
101 An assessment in 2000 found that you functioned within the mild range of intellectual disability. I note, consistent with your current assessments.
102 At the time of that neuropsychological assessment with Dr Anson, you were 15 years of age. The various assessments she conducted with you were interrupted by you spending days in the secure welfare unit (paragraph 4).
103 Your full-scale IQ was assessed at 65. A number of strategies were outlined in her report to assist those attempting to communicate/counsel you.
104 Dr Anson referred not only to your intellectual disability, but severe language impairment. Her current assessment revealed, again, that you were functioning within the mild range of intellectual disability and the results indicated your cognitive difficulties had been relatively stable and longstanding. Your reported history of neglect and abuse “may” have contributed to your current cognitive profile (ie: as of 2011). In her opinion, your cognitive difficulties suggested you would benefit from a highly structured and consistent behavioural program.
105 She understood that considerable work had been dedicated to establishing and monitoring such a program as at that date. Further, she also observed, as do I, that then, your attendant care team was supported by a number of agencies (page 10 of her report). The high level of support continued, as referred to in the most recent report of Mr Stanislawski and also his evidence before me.
106 I also heard evidence on 14 September from Simon Walter, Disability Accommodation Services manager, confirming your unit in the supported accommodation would be available to you in the near future and they could "hold" it for you for 90 days following sentence. Thereafter, as I understood it, accommodation for you would be through Disability Insurance Scheme, which would provide accommodation, although Mr Walter did not know where that would be.
107
He gave evidence that staff at your recent supported accommodation were required to prepare an incident report, should there be issues with you and
I discussed this with him. I am conscious of the 90 day limit he referred to, but this is merely one of the considerations I must take into account when determining the appropriate sentence.
108 Joanna O’Brien, your Disability Case Manager until recently (now Stacey Allison), reported Disability Client Services saw you weekly.
109 Also before me on 14 September 2017 were some further reports.
110 An Extended Pre-Sentence Assessment Report, dated 11 September 2017, relevant to a community corrections order. The author of that report, Glen Dowling of Horsham Community Correctional Services, had a number of documents available to him for the preparation of the report (as outlined on page 1).
111 Referring to your account of the current offending, you advised you had been both drunk and under the influence of illicit substances at the time of your offending.
112 You described that prior to this offending, you had been to your mother’s ex‑partner’s house to have a few drinks with her and it was there you met Mr Collins, you said, for the first time. Throughout the assessment, you advised that you were only “going along” with what the co‑accused suggested, because you felt threatened to do so. You also said that Mr Collins placed a knife to your throat prior to the aggravated burglary occurring.
113 You described that you told Mr Collins you wanted help “scaring these people” because they owed you money. The author of the report also noted those people were the same individuals that you were advised had previously bashed your mother.
114 When asked how you came to have the gun in your hand, you were highly ambiguous in your answers. You said that Mr Collins had given you the gun, and you froze with it in your hand. You said you had no intentions of using the gun.
115 The author, Mr Dowling, noted you had successfully completed a parole order in 2016, having complied well with it, albeit it was of less than two months’ duration.
116 Mr Dowling, however, noted you had an extensive history in the Children’s Court and a poor history of compliance with previous treatment orders.
117 In his opinion, you presented as very high or high in a number of criminogenic risks. This is concerning.
118
Mr Dowling referred to your extensive and troubling no-engagement with previous youth justice orders and therapeutic conditions imposed. You had
a number of psychological issues, with substance-abuse issues, requiring immediate attention and monitoring once released from custody.
119 In the opinion of Mr Dowling, Community Corrections considered that the level of oversight required in order to manage you would be more appropriate under a parole order, that under such an order you would be monitored more stringently within the community. In that regard, CCS recommended a parole order over a community correction order. I am mindful of that recommendation and have carefully considered it.
120 When considering protective factors, CCS were hopeful that the support of a justice plan might provide further insight and assistance, ensuring you attended all treatment programs and sessions as required.
121 Whilst you had been assessed as suitable for a community correction order, CCS recommended, due to the greater level of oversight under a period of parole, that that was a more appropriate option.
122 Should I impose a community correction order, a number of conditions were recommended by him, including supervision, a justice plan and judicial monitoring.
123 I turn to a justice plan prepared by Joanna O’Brien, dated 11 August 2017, this plan having been prepared by request following the last hearing on 21 July 2017. I have read the proposed plan and recommendations.
124 In addition there was a Client Overview Report prepared by Ms O’Brien, also dated 11 August 2017, which I have also read.
125
Mr Moore relied upon the various reports tendered in support of his submission that the principles in Verdins[5] were applicable when sentencing you, including when assessing the need for general deterrence and also your moral culpability. He urged, in relation to both, that general deterrence would be moderated because of your intellectual disability, as would your moral culpability, as
a result of you being easily manipulated by others. That you were so manipulated seems to be supported on the material before me. In particular, Mr Stanislawski refers to you being exploited by peers in the past.
[5] (2007) 16 VR 269
126 I briefly sought submissions in July from the prosecution regarding disposition urged in this case. The prosecutor submitted a head sentence and a non-parole period was the only appropriate disposition, that a combination term of imprisonment with a community correction order, incorporating a justice plan, was outside the range of appropriate dispositions. I received further submissions from the prosecution on 14 September 2017, most recently here, confirming that same position.
127 In my opinion, Verdins does have some application in your case and that there should be a reduction in moral culpability and general deterrence. I also accept your time in custody will be more burdensome for you than for a prisoner without your various "issues". I note to date you have been on protection.
128 I have also considered Boulton v Ors[6], in which the courts were urged to "rethink the conventional wisdom about whether prison is really the only option". Boulton has been considered in many subsequent cases, which includes Hutchinson v The Queen[7] in which Priest JA said:
"It should not be thought Boulton offers a ‘get out of jail free’ card, in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
[6] [2014] VSCA 342
[7] [2015] VSCA 115
129 I accept also you had a disadvantaged background and your young age at sentence.
130 Also, your plea of guilty and the stage at which it was entered, to which I have previously referred.
131 I repeat, I have at best, guarded optimism regarding your prospects of rehabilitation. I am mindful, however, I must seek to maximise your chances of rehabilitation, as they may be.
132 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as general deterrence, which is of considerable importance in a case such as this, of course acknowledging Verdins.
133 There is also the need for specific deterrence, as you have an extensive and troubling criminal history.
134 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This continues to concern me.
135 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
136 I am mindful of the sentencing disposition urged by the prosecution and the reservations of Community Corrections regarding suitability of a community correction order.
137 On balance, I have determined a combination disposition is appropriate, however, there will be further imprisonment before you commence the community correction order.
138 Now in determining the appropriate sentence, I have applied the principles of totality (including being aware of time you have served to date).
139 Now this is what I propose. But obviously, you have to consent to the community correction order being imposed. So this is what I am proposing, so that you know, so that you can consider it carefully. You understand? You understand that, do you, Mr Moore?
140 MR MOORE: Indeed.
141 HER HONOUR: You can explain it to him.
142 MR MOORE: I will explain his consent is required.
143 HER HONOUR: Great.
144 This is what I am proposing, all right?
145 MR MOORE: Yes, Your Honour.
146 HER HONOUR: On Charges 1, 2 and 3, an aggregate - I assume I can aggregate it, seeing it is all in the same offence.
147 MR MOORE: Indeed.
148 HER HONOUR: Convicted and sentenced to 7 months’ imprisonment and on completion of that 7 months, you will then be subject to a community correction order for a period of 2 years and 6 months.
149 I do not, I repeat, I do not, underline the word "not" intend to declare your time served to date for this offending as pre-sentence detention, pursuant to s18(4) Sentencing Act 1991. To make that clear, that is, you must complete 7 months' imprisonment from today’s date. Is that clear to you, Mr Moore, at least?
150 MR MOORE: That is. That is abundantly clear.
151 HER HONOUR: Right to explain it?
152 Now before I make that order, I have to tell you a bit about a correction order that I am proposing, to give you an opportunity to decide whether or not you consent to such an order being made, all right? Listen carefully.
153 There are core conditions that apply to community correction orders and all of them also apply to you.
·You must not commit, whether in or outside Victoria, during the period of the order, which is two and a half years, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice or his or her nominee, during the period of the order, that is, over two and a half years.
·You must report to the Community Correction Centre at Ballarat within two clear days following your release from custody, that is, after you have done the 7 months from today.
·You must notify the Secretary or his or her nominee, of any change of address or employment within two clear working days, after that change.
·You must not leave Victoria, except with the permission of the Secretary to the Department of Justice or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order. That means, a Corrections worker, what they tell you to do, you have to do.
154 But there are going to be a number of other conditions I propose that will be attached to this order and they also apply to you:
· You have to perform 100 hours of unpaid community work over a period of the first 12 months of the order, as directed by the Regional Manager (s48C).
· You must be under the supervision of a Community Corrections officer for a period of 2 years and 6 months.
·You are required to be supervised, monitored and managed, as directed by the Secretary or his or her nominee (s48E).
· You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager (s48D(3)(a)).
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency, as directed by the Regional Manager.
· You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager (s48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager (s48D(3)).
Now I am going to add this one because it is not here.
· You must comply with the justice plan dated 11 August 2017 as part of this order, as directed by the Regional Manager and/or Mr Stanislawski.
Next one, this is the one to note Mr Moore.
· You must attend for review of your progress and compliance or otherwise with the conditions of the order. You have to come back before me in
12 months’ time, that is on 20 September 2018.
That is five months afer your release from custody, after you have done your seven months. So you come out after your seven months from start today, then about five months later, because 7, 8, 9, 10, 11, 12 months, five months after that, you are back before me and that date will be
20 September. Yes, got that? At 9.30 am.
· I direct that I be advised by your Corrections Officer of any non-compliance with these conditions and I will then determine if the matter should be back before me.
Not for breach, but it if looks like you are getting a bit wobbly, all right, you are breaching a few things, I will get you back and say, "Now just be careful." We do not want to breach you, just be careful, all right?
155 I can only impose a community correction order if you agree to such an order being imposed. So I still have to tell you more about it. I know, but I have just got to, all right? It is a lot to listen to.
156 I should advise you that if you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.
157 You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment.
158 So you have got to be extra careful for the two and a half years when you are on the community correction order. Do not commit any further offences that might incur a term of imprisonment, otherwise you have got to come back before the court and me and I have to re-sentence you on these three charges that are before me, so you have got to be extra careful. You follow?
159 I also advise that if you fail to comply with a direction of the Secretary to the Department of Justice, that is a Community Corrections officer or worker, if you like, as part of this order, a substantial fine can be imposed.
160 Now that is an awful lot to take in, Mr Moore.
161 MR MOORE: Indeed.
162 HER HONOUR: I know. Do your best and if there is a problem with it, well we will just have to go step by step.
163
MR MOORE: Is it proposed the matter be stood down and I will speak to
Mr Burt in cells?
164 HER HONOUR: Yes, yes. Can you have a word to him.
165 MR MOORE: Yes.
166 HER HONOUR: And I am asking him, effectively, if he consents to the order in those terms.
167 MR MOORE: Yes, I'll speak to him in the cells.
168 HER HONOUR: And if he understands them before I formally pronounce the sentence.
169 MR MOORE: Yes.
170 HER HONOUR: But I have to give him that chance.
171 MR MOORE: Understood.
172 HER HONOUR: So is there anything you are not sure about?
173 MR MOORE: No, that's clear. What is contemplated is a release in April 2018, followed by a two and a half year correction order with the 13 Your Honour has ascribed.
174 HER HONOUR: So you are pretty clear on all that?
175 MR MOORE: That seems very clear to me, yes, and I'll - - -
176 HER HONOUR: Well, good luck. I will let you have a chance to speak to him.
177 MR MOORE: Yes.
178 HER HONOUR: I will be outside the door, but do not - yes, have a look at the draft, if that helps you. Is that going to help you to remember it?
179 MR MOORE: That would be helpful. I have taken notes, but - - -
180 HER HONOUR: It is only a draft, I might have to fix it up. If there is anything that is wrong, or it looks wrong. Now just check the wording of the justice plan. The justice plan is not on there.
181 MR MOORE: Yes, but - - -
182 HER HONOUR: Because it was left out by mistake.
183 MR MOORE: That is in my list, yes.
184 HER HONOUR: So it is a justice plan.
185 MR MOORE: Yes.
186 HER HONOUR: He has got to comply with that and any directions relating to that from the Regional Manager and/or Mr Stanislawski or his nominee.
187 MR MOORE: Yes.
188 HER HONOUR: In case he does not get involved any more.
189 MR MOORE: Yes.
190 HER HONOUR: All right, well do your best and I will come back in - - -
191 MR MOORE: May it please Your Honour.
192 HER HONOUR: When you need me. All right? Ms Jackson. Thanks. Sorry, I should ask. Are you all right for him to remain here for the moment, or not?
193 PRISON OFFICER: Yes, Your Honour, I'll stay with him.
194 HER HONOUR: Are you sure?
195 PRISON OFFICER: That is fine.
196 HER HONOUR: Is that all right?
197 PRISON OFFICER: That is fine.
198 HER HONOUR: Because I know normally you would prefer to take him downstairs, but you are all right with him here?
199 PRISON OFFICER: I am happy for him to have that conversation - - -
200 HER HONOUR: Sir, are you all right at the door there, to make sure no one comes in? Is that all right?
201 PRISON OFFICER 2: Yes, that's fine.
202 HER HONOUR: Are you all right for this arrangement?
203 PRISON OFFICER 2: Yep.
204 HER HONOUR: All right. It is a bit unusual. All right. Thanks.
205 PRISON OFFICER: That's fine.
206 HER HONOUR: All right then. I will just be out here.
207 (Short adjournment.)
208 HER HONOUR: So how did you go, Mr Moore?
209 MR MOORE: Thank you for the time. I have explained the order and all of the obligations the order has with it to Mr Burt. He consents to the proposed order and the structured sentence that Your Honour's indicated.
210 HER HONOUR: That includes that justice plan bit?
211 MR MOORE: Yes.
212 HER HONOUR: So he will be aware of that.
213 MR MOORE: The way I approached it, just to make clear, as I explained.
214 HER HONOUR: Yes.
215 MR MOORE: The variety of people that Mr Burt would need to work with and essentially obey - - -
216 HER HONOUR: Yes.
217
MR MOORE: - - - under the order and I've given him - essentially showing, without wanting to use a prop, I've just shown him, every box represents
a person that he'd have to work with.
218 HER HONOUR: Who was that? Who are these people?
219 MR MOORE: So who I've identified is Alison, his justice plan.
220 HER HONOUR: Yes.
221 MR MOORE: A DSS worker, a person from the Department of Corrections, probably a drug and alcohol counsellor, Mr Stanislawski, perhaps a person - well probably a person with the NDIS.
222 HER HONOUR: Yes.
223 MR MOORE: Probably a person who co-ordinates courses or runs different courses.
224 HER HONOUR: Yes. That sounds good.
225 MR MOORE: And I explained there might be different courses and lastly probably a general practitioner and that he would need to work with all of those people.
226 HER HONOUR: Yes.
227 MR MOORE: And so that's part of the way in which I approached that, Your Honour. And Mr Burt consents.
228 HER HONOUR: All right, well it is a big job trying to explain that, I understand that. But I have to now ask him myself anyway.
229 MR MOORE: Indeed.
230 HER HONOUR: I understand that. Will you stand for the moment, Mr Burt.
231 Now, Mr Moore tells me he has explained what this order means to you. Has he?
232 OFFENDER: Yes, Your Honour.
233 HER HONOUR: Yes, I am sure he has. And you understand what is expected of you?
234 OFFENDER: Yes.
235 HER HONOUR: On the order?
236 OFFENDER: Yes, Your Honour.
237 HER HONOUR: Now there are lots of conditions on this order and he told you those conditions?
238 OFFENDER: Yes.
239 HER HONOUR: And do you agree, or do you consent to being on a community corrections order - - -
240 OFFENDER: Yes, Your Honour.
241 HER HONOUR: - - - that has all those conditions on it?
242 OFFENDER: Yes, I do, Your Honour.
243 HER HONOUR: All right. I will keep going. I have not finished. So I now formally order sentence.
244 I formally sentence you on Charges 1, 2 and 3 on the indictment, to an aggregate 7 months’ imprisonment, with a community correction order for a period of 2 years and 6 months on the terms and conditions to which I have just referred, which is to commence after that 7 months.
245 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words, if you had pleaded not guilty and a jury had found you guilty, I would have sentenced you to a term of 6 years gaol, with a non-parole of 4 years.
246
Pursuant to s18(4) Sentencing Act 1991, I will just repeat. I do not declare the 248 days, which I believe were served up to and including yesterday,
20 September, as pre-sentence detention.
247 MS RUSCHENA: Two forty eight days, Your Honour.
248 HER HONOUR: All right, 248. Yes, I have got that. Do you agree with that?
249 MR MOORE: Yes.
250 HER HONOUR: That is the number of days.
251 MR MOORE: I agree with those days.
252 HER HONOUR: So just so you are clear. What that means in simple language for Mr Burt is he will, in essence, serve about 15 and a bit months. I have not done the maths, but about 15 and a half months in total. Then he will be released on this community correction order for two and a half years, but he has only got seven months to go. Does that sort of - - -
253 MR MOORE: That is clear, yes. No, that is clear.
254 HER HONOUR: I try to make it clear.
255 Now, were there any other orders? I do not think there were.
256 MS RUSCHENA: No, I've got no record of any other orders, Your Honour, thank you.
257 HER HONOUR: Good. When I say "good", it means I got it right, there were not any other orders. All right, now, we need to sign some documents. Can you go - Ms Jackson has added the bit about the justice plan.
258 MR MOORE: Yes.
259 HER HONOUR: She will point that out to you.
260 MR MOORE: 11 August.
261 HER HONOUR: So that - if you would not mind going back and just helping him sign it or something.
262 MR MOORE: Indeed.
263 HER HONOUR: All signed?
264 MR MOORE: Yes, Your Honour.
265 HER HONOUR: All right. So I will see Mr Burt in 12 months.
266 MR MOORE: Indeed.
267 HER HONOUR: All right, look, thank you very much. I do not think there is anything further from your perspective, no?
268 MR MOORE: No, there isn't, Your Honour.
269 HER HONOUR: No from the Crown? No?
270 MS RUSCHENA: No, Your Honour.
271 HER HONOUR: All right, well thank - - -
272 MS RUSCHENA: No, I was only checking to make sure if Your Honour had to cite reasons for not declaring the pre-sentence detention, but there's nothing in s.18(4) that says Your Honour has to - - -
273 HER HONOUR: I do not believe I do.
274 MS RUSCHENA: No.
275 HER HONOUR: I sort of made it abundantly clear.
276 MS RUSCHENA: Yes.
277 HER HONOUR: I hope I have.
278 MR MOORE: It is clear.
279 HER HONOUR: It would not have been enough time in custody.
280 MS RUSCHENA: No, I was only checking, Your Honour, just to - - -
281 HER HONOUR: All right. But anyway - and thanks again, Mr Moore, for your assistance.
282 MR MOORE: You are welcome, Your Honour.
283 HER HONOUR: As usual, very thorough. All right. I think that is everything. Thank you. You will have to go, Mr Burt, all right? You will have to go now.
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