Director of Public Prosecutions v Burton

[2019] VCC 2087

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted

Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 18-01303

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEIHANA BURTON

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2019
DATE OF SENTENCE:	11 December 2019
CASE MAY BE CITED AS:	DPP v BURTON
MEDIUM NEUTRAL CITATION:	[2019] VCC 2087

REASONS FOR SENTENCE

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Subject:  Criminal law

Catchwords:  Extortion, theft

Legislation Cited:           Sentencing Act 1991; Confiscation Act 1997

Cases Cited:DPP v Jolly-Bishop [2019] VCC ; Saracevic v R [2017] VSCA 212; DPP v Maratai [2016] VCC 177; DPP v Balsillie [2016] VCC 221; DPP v Jaha [2016] VCC 483; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh	Director of Public Prosecutions
For the Accused	Mr R. de Kretser	Balmer & Associates

VICTORIAN GOVERNMENT REPORTING SERVICE 204051

HIS HONOUR:

1Neihana Burton, on 27 May 2019, you pleaded guilty to two charges of theft and one charge of extortion. The maximum penalties for those offences are set out by Parliament as follows; Theft, 10 years' imprisonment under s.74 of the Crimes Act 1958, and extortion, 15 years' imprisonment under s.27 of the Crimes Act. The details of your offending are set out in the prosecution opening for the plea dated 27 November 2019.1

2In short, on 9 October 2017, you were present at the Sandhurst Golf Club with your co-accused, Luke Jolly-Bishop and another person, Yoshaan Vincent. Both your co-accused and Vincent were members of the Comancheros motorcycle club. At that time, you were associated with the club, but you were not a member. Your victim had been asked to attend and handover registration transfer papers, relating to a Harley Davidson motorcycle which he had previously owned, but had been taken by Vincent.

3At that time, in company with your co-accused, you told your victim that he was now required to pay $2000 for the, 'Fuck around with the paperwork'. Your victim felt physically intimidated and provided you with his telephone number. You sent a number of text messages to your victim, and on 13 October 2017, he met with you and your co-accused, Jolly-Bishop, at the Sandhurst Golf club and provided $1500, stating this was all he could obtain.

4You sent a further series of text messages to him on 19 October 2017, and on that day, you and your co-accused met him at another location in the early evening, where he handed over the remaining $500. On 2 November 2017, you spoke by telephone with your victim in relation to an earlier demand you had made from him to, 'Suss out a gold chain', or give him an extra $300 if he could not find one.

5Your victim attended police and the following day, further conversations were

1       Exhibit A

then recorded. In the late afternoon of 3 November 2017, you and your co-accused attended a pre-arranged meeting point in Cranbourne North. The complainant advised by phone that he would not be attending, and police recorded a conversation in which you and your co-accused were recorded as making threats to your victim that would be carried out, unless further money was paid. These threats included your co-accused visiting your victim's phone, 'You're gunna get whoever lives there fucking hurt mate, and it doesn't matter if you leave fucken Melbourne … there's people everywhere'.

6On 9 November 2017, you and your co-accused, together with other persons stole items including a television set, two canvas posters, and 10 pairs of sports shoes. These were taken from your victim's home. When you were arrested  at your home on 23 November 2017, a police search conducted under warrant identified one of the canvas posters, two pairs of sport shoes, and a t-shirt, which were identified as belonging to your victim.

7Through your counsel, Mr de Kretser, you have admitted a criminal history, involving a single charge of affray, which was dealt with in the Dandenong Magistrates' Court on 5 October 2017 and without conviction on that occasion. You were placed on a 12 month good behaviour bond and required to make a payment of $500 to the court fund. No conviction was recorded. I accept that this was limited offending, and generally, your past history is good.

Personal details

8You are now 26 years old, the offending occurred around the time of your 24th birthday. You were born in New Zealand, your parents separated when you were young, and you had no contact with your natural father since the time of that separation. Your mother, who is present today, and was present during your plea hearing, re-partnered when you were approximately four years of age. She moved to Australia when you were aged seven. You have two younger siblings, Jordon, who has recently completed Year 12 and is 18 years of age,

and Aurora, who is completing Year 10, and is 15 years of age. Once again, your siblings are present in court.

9Both of your siblings are Australian citizens as is your step-father. You were brought up in what is described by your counsel as a strict but caring family, and you were actively involved as a participant in a church community. In your teenage years, you were involved in setting up a multicultural program at Lyndhurst Secondary College. In 2013, the college received an excellence award from the government for this program, and your contribution to it was recognised.

10After leaving school you worked in a variety of employments, but sadly, you began to use illicit drugs and alcohol, which may be linked to particularly tragic events which were occurring in your life at that time. At this time, you stopped engaging with your church and you commenced associating with what could probably be described as undesirable companions, including members of the Comancheros motorcycle club, of which your co-offender was a member.

11Following your arrest, you were in custody for one day only before being released on bail. However, shortly thereafter, in February 2018, your visa was cancelled by Commonwealth authorities, and you were held in immigration detention for 194 days until 28 August 2018. You have remained on bail since that time.

12Your guilty plea entered in May of this year is in my view, indicative of the degree of genuine remorse for your actions. The prosecution does not dispute the fact that you have tendered compensation for your victim, and it is not alleged that you have been involved in any further offending. I accept that you have obtained employment, and you have strong support from your family members.

13Mr de Kretser tendered a report from Mr Patrick Newton, psychologist dated  9 October 2019. Mr Newton regarded you as satisfying the diagnostic criteria

for a severe substance abuse disorder, in relation to both alcohol and cannabis. He further stated:

'Assuming his reported abstinence can be objectively verified, this condition would now be specified as being in remission'.2

14Mr Newton also regarded you as being somewhat immature for your age and was concerned that any return to a custodial environment would be a risk:

‘Burton's personality development could be permanently diverted, into less constructive paths.’3

15Mr de Kretser also tendered a short note from a general practitioner, Dr Chan. This was dated 9 February 2018 and expressed concern that placement in a detention centre would be inadvisable because of your then severe anxiety and depression. There was an earlier letter from Dr Chan on 15 January 2018, diagnosing you as suffering from that condition, and noting the medications which were then prescribed for you.

16Mr de Kretser also tendered documents written by you during your period of immigration detention, and I accept that detention was made more difficult in the circumstances of your underlying mental health condition. Mr de Kretser tendered documents relating to your immigration status, and highlighted the consequences of a lengthy custodial sentence, or indeed, any custodial sentence in terms of your potential deportation to New Zealand.

17I accept that any sentence of imprisonment will have significant effect on members of your family. Mr de Kretser tendered reports from two psychologists, whose opinions supported a conclusion that your mother's longstanding depressive condition would be worsened by your being sentenced to a further period of incarceration, or indeed, deportation at some future time.4 Mr de Kretser also referred me to a number of character references, including

2       Exhibit 1

3       Exhibit 1

4Kim Dowse dated 11 November 2019 and David Ball dated 27 November 2019 & 22 November 2019

very detailed letters from your mother, dated 13 October 2019 and your step-father dated 20 September 2017.

18Additionally, there were references from your grandfather, a youth worker, family and friends, which expressed positive comments about your acknowledgment of your offending and your determination to avoid relapsing into criminal behaviour in the future. I accept that the family dynamic is significantly impacted by your offending, and also by any disposition which the court makes.

19Your father frequently works in remote locations on a contractual basis, and your mother has a long-standing depressive condition, which has no doubt been impacted by your offending and its consequences. Mr de Kretser also made reference to Commonwealth legislation, which would almost inevitably lead to your deportation to New Zealand if a sentence of imprisonment of 12 months or more was imposed upon you.

Sentencing considerations

20A victim impact statement was read to the court by the informant during the course of your plea hearing. Your victim has been very significantly affected by the offending of you and your co-offender. I accept as accurate, the statement made by your victim, 'I am constantly living in fear now and looking over my shoulder every time I leave my house. That alone is not a nice way to live and experience every day'.5

21I note you have written a letter of apology to your victim, together with a genuine offer to make financial restitution. I am satisfied that these actions are consistent with more than token acknowledgment of your offending and constitute acts of genuine remorse. Your plea of guilty, although one which could not be regarded as an early plea, is of significance, and in my view, more than a mere utilitarian benefit to the community. It is indicative of your

5       Exhibit B

acceptance of your offending as a wrongful act; it provides evidence of enhanced prospects for your rehabilitation.

22Mr de Kretser submitted that your offending was largely opportunistic and lacked any real sophistication. I do accept that there was no actual violence connected to the extortion. I also accept that in relation to the charges of theft, that the property obtained was not substantial. Nevertheless, the circumstances of the extortion involving your then association with an outlaw motorcycle club, committed in company with members of that club, are aggravating factors, and lead me to conclude that the offending in relation to the extortion must be regarded as broadly within the mid-range of such offences.

23I accept the submissions made by Mr de Kretser in relation to the engagement of principles five and six as set out in the case of Verdins.6 In your case, there is evidence that the difficulties you experienced whilst in immigration detention, and I am able to accept that any sentence of imprisonment upon you will weigh more heavily than it would on a person of normal health and resilience.

24I am also able to accept, largely on the basis of Mr Newton's opinion, that there is a serious risk of imprisonment having an adverse effect on your mental health, and this will be a factor tending to mitigate fair punishment to be imposed upon you. I also accept that the principle of parity must be considered in light of your enhanced prospects of rehabilitation, your acts indicative of genuine remorse, and to some extent, a lesser degree of moral culpability given the findings I have made as to your then mental state, and your active substance abuse at the time of your offending.

25I do note your co-offender was sentenced in relation to aggregate offending to a total effective sentence of two years and 10 months, with a minimum period before eligibility for parole of one year and nine months. The individual

6       R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269

sentence for the offence of extortion in his case was two years and six months. I accept that there were aggravating factors in his offending that are not present in your case.

26Mr Singh, on behalf of the Director of Public Prosecutions, submitted that a head sentence of imprisonment, and a minimum term would be an appropriate disposition, although he did concede that much of the material tendered on your plea had not been provided to the Director of Public Prosecutions for consideration.

27I regard your prospects for rehabilitation as being excellent. But even considering the important principle of parsimony, the crime of extortion in particular, is one that requires any sentence to provide general deterrence to others in the community. I do take into account in imposing a sentence that I regard as fair upon you, that you have already been detained by Commonwealth authorities for a period in excess of six months; although this cannot be reckoned as time served for the purposes of reducing the effective sentence imposed upon you, it can nevertheless be considered relevant to the matter as to what level of general deterrence or specific deterrence needs to be involved in a sentence I impose upon you.

28I will ask you to stand now, Mr Burton. I will pass sentence upon you.

29I am of the view that a term of imprisonment, albeit one combined with a community corrections order, is the only appropriate disposition in your case. You have been assessed as suitable for a community corrections order, and you have indicated your consent to such an order on 29 November 2019. You will be sentenced as follows.

30On the charge of extortion, you will be convicted and sentenced to a term of six months' imprisonment. You will be further sentenced upon your release to a community correction order for a period of three years commencing on the date of your release from custody.

31In addition to the core conditions of such an order, I impose the following special conditions upon you. You will be required to perform 150 hours of unpaid community work. You will be required to obtain treatment and rehabilitation for alcohol and drugs, especially cannabis. You will be required to undertake treatment and rehabilitation programs to reduce any further offending. You will receive assessment and treatment in respect of mental health issues. You will be required to be supervised.

32Lastly and in my view most importantly, you are not to associate with any members of the Comancheros motorcycles club, including any past members, and you are not to knowingly associate with any members of any other outlaw motorcycle club or gang, for the three year term of that community corrections order.

33On each of the charges of theft, you are convicted and sentenced to one months' imprisonment, each of those sentences is to be served concurrently with the head sentence imposed upon you in respect of extortion. The total effective sentence I am imposing upon you is therefore six months and then the community corrections order for three years.

34For the purposes of s.6AAA of the Sentencing Act 1991 and noting the circumstances of your offending, if it had not been for your guilty plea, I would have imposed an aggregate term of imprisonment of 21 months with a 12 month minimum term. I declare that one day held in pre-sentence detention as reckoned as a period of time served under the sentence and noted in the record of the court.

35You can sit down for the moment, Mr Burton. Pursuant to s.34A of the Confiscation Act 1997, the property referred to in the schedule will be forfeited to the minister and I have set out in the sentencing reasons that it relates to the canvas poster, the two pairs of sports shoes and the black Iron Addicts t-shirt.

36I further order pursuant to s.78(1) of the Confiscation Act, the property in the

schedule be forfeited to the state, and I direct that it be placed in the custody of the chief commissioner of police, to be held by him until 28 days from this date, or the conclusion of any appeal proceedings, where it might be tested and/or analysed and then destroyed, and that is a container containing green vegetable matter.

37I further order pursuant to s.86 of the Sentencing Act that compensation in the sum of $2000 be payable to Victoria Police, to be passed on to your victim.

38MR SINGH: As Your Honour pleases.

39HIS HONOUR: Any other matters?

40MR SINGH: I will just note, Your Honour, for completeness that the prosecution have sighted such a cheque in relation to the compensation order.

41HIS HONOUR: Yes, thank you, Mr Singh.

42MR DE KRETSER: If I could just approach with Your Honour's associate for the signing of the order.

43HIS HONOUR: Yes, certainly, Mr de Kretser.

44MR DE KRETSER: Thank you, Your Honour. That has been signed.

45HIS HONOUR: Thank you, Mr de Kretser.

46ASSOCIATE:    Mr Burton, do you agree to abide by the conditions of the community correction order?

47ACCUSED: Yes.

48ASSOCIATE: And is that your signature?

49ACCUSED: Yes, it is.

50ASSOCIATE: Thank you, have a seat.

51HIS HONOUR: All right.  If there are no other matters at this stage, Mr Burton, I will have to ask you now to go with the corrections officer, and I wish you every success on your release with the community corrections order.

52MR SINGH: Before I forget, Your Honour, seasons greetings.

53HIS HONOUR: Thank you, Mr Singh, Mr De Kretser and explain to your client's relatives, no sentencing is an easy task.

54MR DE KRETSER: No, no. I will spend some time with them now, and my client as well. Thank you.

55HIS HONOUR: Thank you, Mr De Kretser. All right.

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