Director of Public Prosecutions v Burton

[2019] VCC 1022

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00971

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER BURTON

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2019
DATE OF SENTENCE:	4 July 2019
CASE MAY BE CITED AS:	DPP v Burton
MEDIUM NEUTRAL CITATION:	[2019] VCC 1022

REASONS FOR SENTENCE
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Subject:

Catchwords:  sentence – combination sentence – breach of CCO – significant long term effects of disadvantaged childhood – CCO cancelled – resentenced to time served

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Atkinson	Ms M. Smith
For the Accused	Ms M. Walker	Melinda Walker

HER HONOUR: 

1On 23 September 2015, I sentenced you, Mr Burton, to a period of two years' imprisonment with a non-parole period of 18 months, followed by a three-year community correction order which was rehabilitative in nature.  The sentences were imposed for one charge of attempted armed robbery and one charge of armed robbery. 

2I set out the circumstances of the offending in my original reasons for sentence,[1] and I will adopt what I said there without repeating them.

[1]DPP v Burton [2015] VCC 1526.

3I also set out in my reasons for sentence why I took the course of imposing a term of imprisonment with a non-parole period and then a lengthy rehabilitation or treatment-based CCO. Again, I adopt what I said there about your history and the reasons for taking that course without repeating myself.  Everything that I said there still applies today.  There has been nothing to suggest there needs to be any correction or revision of the information I had or the reasons that I took the course I did.

4It was my hope at the time that I originally sentenced you that you would be able to do a transition on parole before commencing your community correction order and that you would be transferred, through Corrections, to the Judy Lazarus Centre as a means of assisting your return and reintegration into the community.  That did not happen, so you served the full two years of the sentence that I had imposed before being released on 22 September 2017, on the community correction order I had made.

5Between then and December 2017 - that is, for the three months after your release and leading up to the first judicial monitoring that I ordered - you remained offence-free and compliant with the rehabilitative conditions of your CCO, or generally compliant with the rehabilitative conditions.  There were some non-compliances in relation to failures to attend for supervision and treatment and rehabilitation, but there was general compliance.

6From December 2017, your compliance with the treatment conditions of the CCO tapered off and you started to commit offences.  That led, ultimately, to a contravention hearing which was held before me on 16 August 2018.  By then, there was significant non-compliance with the treatment conditions of your order and also a number of clusters of offending which were dealt with in the Magistrates' Court.

7On that first contravention hearing, I found the contravention proven and confirmed the original order.  And I did so because, first of all, although you had committed breach offences, they were relatively low-level summary offences, involving dishonesty and related to your homelessness and substance abuse history, contextualised by your background of terrible deprivation and trauma.

8You had not committed any further offences of personal violence or of armed robbery, or attempted armed robbery.  However, you had not been able to find stable housing and that was clearly a significant factor in your continued drug use and low-level offending.

9I warned you that you had to work harder to comply with the conditions of your CCO and not commit any further offences.  Despite that, and despite what I accept is your desire to be offence-free and to be substance-free, you have been unable to comply with the rehabilitative conditions of your CCO and you have been unable to break the cycle of low-level offending.

10And so, within a week or so of confirming your CCO, non-compliance, both by way of not engaging with Corrections in relation to your rehabilitation and by committing the same sorts of offences that you had in the past, commenced and has continued.

11You have had, as you had before I first dealt with you, a number of short periods in gaol.  More often than not, by the time you came before the court to be sentenced, time served resulted in your immediate release.  Again, you had no rehabilitative structures built around you or parole-type supervision, and nothing was able to be done to secure you more stable housing.

12So it is that now, the second contravention of the CCO is before me and it is clear from the pattern of continued minor offending and of continued lack of engagement with the rehabilitative conditions of your order that despite your desire to lead a better life, this is not helping you to do so and you are not capable, I think, of being able to comply with the CCO.

13In those circumstances, it seems to me that it is appropriate to cancel the CCO and to re-sentence you for the original offending.

14That is the recommendation of Corrections and I must say, particularly in that first period where you were engaged and as your engagement started to taper off, Corrections worked very hard and very well, in my view, to try and find ways of helping you rather than imposing conditions on you.  When you found some of the rehabilitative options they suggested for you difficult, they sought other avenues for you to engage with counselling to address your substance abuse.

15I do not see that this is a failure by Corrections to provide you, or to try and provide you, with supports.  It is rather the inability, again, to get stable housing and the difficulty in breaking such a long, entrenched habit of drug use and minor offending, and the difficulty that I understand you have in going into intensive, painful therapy to deal with your childhood and young adulthood trauma and to try and, through that, break the cycle of substance abuse and offending.

16Whilst, of course, you are an adult and you must take responsibility for your behaviour, I have enormous sympathy for the position you find yourself in, having regard to that history, which was not your fault.  What happened to you as a child was not your fault, and whilst some people may be able to manage a little better than others, you are not to blame for the difficulties that you have faced. It is not surprising that you have faced the difficulties in your life that you have as a result of that start in your life.  You had a childhood no one should have in a community like this.

17It is of significance, in my view, that you have continued to show a desire to lead a better life and that you have, most importantly, not committed any offences of the sort that brought you before me: no offences of violence, no armed robberies or attempted armed robberies.  You have returned to your, if you like, previous cycle.

18I see that, therefore, as meaning that the impact of a longer term of imprisonment, the attempts to put these rehabilitative structures around you, and the attempts through that to try and find you stable housing has actually had a benefit in that it has encouraged rehabilitation by not having you continue to offend at that higher level, and that you have continued, at times, to show yourself amenable to support and assistance.

19I also see it is important because it appears to have deterred you from committing like offences again and, therefore, looking at longer periods of imprisonment

20So in re-sentencing you, in my view, the need of specific deterrence is significantly reduced.  For the reasons that I expressed last time, whilst there must be some weight given to general deterrence, a lot of weight should not be because of your past and circumstances.  That means you are not the sort of person who has had every advantage in life and, therefore, having made conscious choices to offend at that high level, should be made an example of.

21I also consider that, in looking at rehabilitation to date and encouraging rehabilitation in the future, again, it seems that there has been, although it sounds counter-intuitive, a level of rehabilitation because you have not returned to that same type of offending and that, therefore, needs to be recognised in the sentence.  And it is also important, given your circumstances, that I impose a sentence now that continues to encourage your rehabilitation.

22I am also heartened by hearing that your engagement with the NDIS is progressing.  You clearly are a person who is eligible for support through the NDIS and it is one of the tragedies of your circumstances that you are less able to engage with them and get the support you need because of the very disadvantages you suffer.

23But you are engaged now in the process of registering and becoming qualified for services and once that happens, that will also be a significant protective factor for the community and a rehabilitative factor, because you will have services specially-tailored to your needs and services that are provided outside the criminal justice system.

24So that also gives significant comfort in terms of looking at prospects of future rehabilitation and protection of the community, which must be a significant feature, given your long history of offending.  That is a factor that was not available at the time I sentenced you.

25The other factor that counts in your favour, and like these other factors, goes to significantly reduce the sentence that might otherwise have been the appropriate one, is that you may be in a position, or you are likely to be in a position, where you can pursue a claim for compensation as a result of the abuse you suffered as a child.

26The lawyers who had originally been engaged are prepared to re-engage with you in order to advance your compensation claim and if you are able, with the support of Ms Walker, those lawyers and any carers appointed to assist you or case manage you through the NDIS, to advance that compensation claim, that is likely to be able to provide you with the means to provide you with safe and stable housing.

27And that, again, I say, is one of the most significant factors in putting you in a position where you are less likely to offend and to be better resourced to be able to manage your mental health problems and your substance abuse problems.  So again, I see these factors as positives counting in your favour that go to reduce your risk of reoffending and that therefore reduce the need to impose a harsher sentence for the purposes of denunciation or deterrence.

28I consider, in the circumstances, and having regard to the other matters I took into account in your favour in structuring the original sentence, including your early plea of guilty, your remorse, the fact that this was out of character with the type of offending you had previously committed and your history, that a much lesser sentence than might objectively be available is appropriate.

29And having regard to the level of compliance with your CCO during the time you were at liberty, I consider it appropriate to impose a term of imprisonment for the two charges of attempted armed robbery and armed robbery that will be no longer than the time you have already served, both by way of pre-sentence detention before I originally sentenced you and taking into account the two years of imprisonment you served as part of the combination sentence I imposed back in September 2015.

30All right.  So, formal orders.  Can you now stand please, Mr Burton?

31The formal orders of the court are these:  the contravention is found proven, and you are sentenced to be imprisoned for a period of one month on that and the community correction order is cancelled.

32You are re-sentenced on the two charges of attempted armed robbery and armed robbery.  On the charge of attempted armed robbery, you are sentenced to be imprisoned for a period of 18 months.  And on the charge of armed robbery, you are sentenced to be imprisoned for a period of two years, six months and 13 days.

33The sentences on all three matters - that is, on the contravention, on the attempted armed robbery and on the armed robbery - are to be served concurrently.

34That makes a total effective sentence of two years, six months and 13 days, or 929 days.

35I declare that the amount of time you have spent in pre-sentence detention - that is, the time you spent on remand before I sentenced you originally on 23 September 2015 and the time you spent in custody following sentence from 23 September 2015 until your release on 22 September 2017 under the sentencing order that is now cancelled, is a total of 929 days pre-sentence detention.

36That means that the sentence I have imposed of two years, six months and 13 days, or 929 days, is affected by the declaration that you have already spent 929 days in pre-sentence detention - which means the whole of your sentence, the re-sentence, has been served.

37They are the only orders I need make, are they not?

38COUNSEL:  Yes, Your Honour. 

39HER HONOUR:  All right, thank you.  That means, Mr Burton, you are free of this court and free of appearances before me and that the CCO that I sentenced you to is cancelled. The slate is now cleared in respect of that.  I hope that I never see you, and none of my colleagues see you, before this court again.

40And I hope that you can engage with Ms Walker, who has given you enormous help over many, many years, to get your NDIS application processed so you can start getting supports through it and that you try awfully hard to stay out of trouble in the meantime.

41And that you also, through Ms Walker, engage with Ryan Carlisle Thomas in what I know will be a painful process of having to recount some of what happened to you as a child, but seeing there is a better end in sight, and that is the advancing of a compensation claim, which should then provide you with a trust fund that can provide you with safe, stable and secure housing. 

42And that means that you will not have days out for court anymore.  And when you see the police in the street, you can look at them and walk past without fearing they are about to put a hand on your shoulder and pick you up for something.  And that you can go around the shops and cars and homes in your neighbourhood without feeling that desperate need to get something because you do not have enough money yourself.

43You have got a future ahead of you, and I really hope that you do your best to be able to live without that fear of going back in and out of gaol. 

44Ms Walker, thank you.

45MS WALKER:  As Your Honour pleases.

46HER HONOUR:  And Mr Atkinson, thank you, too.

47MR ATKINSON:  As Your Honour pleases.

48HER HONOUR:  And Ms Eliofski, that means you can close your file - at least, this file - in respect of Mr Burton.  And hopefully, the other one will also be able to be resolved in a way that works for everybody as soon as possible.  Thank you, everyone.

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