Director of Public Prosecutions v Burton

[2015] VCC 1742

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01567

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRISTIAN BURTON

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2015
DATE OF SENTENCE:	30 November 2015
CASE MAY BE CITED AS:	DPP v Burton
MEDIUM NEUTRAL CITATION:	[2015] VCC 1742

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Theft – Burglary – Failure to answer bail – Co-accused – Parity – Relevant criminal record – Long history of drug abuse

Cases Cited:            Boulton & Ors v The Queen (2014) 46 VR 308

Sentence:Convicted and sentenced to aggregate term of 9 months’ imprisonment together with Community Corrections Order of 18 months’ duration with mandatory and other conditions – Presentence detention of 180 days declared as having been served – 165 days taken into account as being served in respect of 2012 matters – s.6AAA Sentencing Act 1991 declared

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French	Acting Solicitor for Public Prosecutions
For the Accused	Mr J. Kelly	Leanne Warren & Associates

HER HONOUR: 

1Kristian Dean Burton, you have pleaded guilty to one charge of burglary and one charge of theft, each of which carry a maximum penalty of ten years' imprisonment.  You have also pleaded guilty to one charge of failing to answer bail, which has a maximum penalty of 12 months' imprisonment.

2The maximum penalties reflect Parliament’s view as to the seriousness of these offences.

3Your offending was opened as follows:

4Sometime prior to 7 pm on 2 January 2014, you, who were then aged 36, and co-offender, Bernard Till, who was then aged 49, gained access to the emergency fire escape stairwell of an arcade in the city and remained hidden there until the arcade had been locked up. 

5At about 12.15 am on Friday 3 January 2014, you and Mr Till emerged from the fire escape emergency exit door on the second level of the arcade.  Each of you were carrying a back pack and were wearing dark clothing with a hooded top which covered your heads.  You were also carrying a satchel over your shoulder.  You removed a nearby fire extinguisher from the wall and lodged it inside the emergency exit door, preventing it from closing. 

6You and Mr Till ran down the internal stairs to the ground level and approached  a shop called "Gold Digger Trading Co".  The business buys and sells gold, jewellery, watches and other valuable commodities, which are displayed in the front window of the premises and inside cabinets and partitions around the store.  You then produced a half-broken brick from inside your bag and threw it against the laminated glass entrance door.  You then kicked through the glass panel, causing the bottom half of it to shatter. 

7You both entered through the broken door and proceeded to ransack the premises, filling your backpacks with items of jewellery, taken from various shelves and smashed display cabinets.  This caused the internal motion detector alarms to activate, which notified a security company.  A number of nearby residents heard the sound of breaking glass and called 000. 

8After being inside the premises for less than one minute, you fled the scene with your bags and headed back to the internal staircase to the second floor of the arcade.  You entered the same emergency exit door which had previously been propped open and made your way to a ground floor exit, which opened on to Manchester Lane.  As you were running, some of the items of stolen jewellery fell out of your bags and onto the ground. 

9You turned on to Flinders Lane and began running towards Elizabeth Street, when you were seen by patrolling police officers who were responding to the 000 call.  They ordered you to stop.  You then turned left on to Degraves Street and were pursued by police officers on foot.  At one point, Mr Till ran towards Constable Ben Mitchell with his fists raised and was subdued by capsicum foam and detained.  You dropped your back pack on Degraves Street and continued running towards Flinders Street, before you were apprehended by Constable Matthew Flanders. 

10Your bags were searched and contained numerous items of jewellery stolen from the premises.  A satchel carried by Mr Till contained a half-broken brick and a head torch with his name written on it.  You were found to have a screwdriver concealed down the front of your pants.  [1]

[1]Statements of Const. Ben MITCHELL (pp.52-54) & Const. Matthew FLANDERS (pp.56-59)

11A total of 272 items of jewellery were stolen by you from the business, with a total retail value of $149,720.  All items were recovered. 

12You were arrested and taken to the East Melbourne Police Station where you were interviewed.  You said that there was a burglary on a shop and that you did it, whereas Mr Till made a “no comment” record of interview. 

13On 7 May 2014, you failed to appear at the Melbourne Magistrates Court and a warrant was issued for your arrest.  You were arrested more than 12 months later on, on 3 June 2015 and remanded in custody, where you have been ever since.  As at the time of the plea hearing, you had spent 174 days in custody, and as at today's date, I understand you have served 180 days, which will be declared in due course by way of pre-sentence detention.

14Your offending is aggravated by the fact that there was a fairly significant degree of planning involved, although your getaway strategy was somewhat unsophisticated, as was your mode of entering the shop.  Having said that, the way in which you conducted yourself whilst in the shop was lacking somewhat in sophistication.   

15There is no victim impact statement in this matter, however, as I said to Mr Till when sentencing him, you both smashed a window causing damage to the premises, which no doubt caused a degree of inconvenience and interruption to the victim in conducting his business.  No doubt, finding your business premises broken into and plundered would be an upsetting experience.

16As I previously remarked to Mr Till, the value of items taken was quite significant, albeit that all of the items were recovered.  Obviously there are burglaries and thefts which involve far lesser and far greater value of goods. Although the recovery of the jewellery was no thanks to you, it is a relevant matter in your favour that there was no permanent loss to the victim insofar as items taken from the shop were concerned.

17I must impose a punishment which is just in all the circumstances of your case and your offending conduct must be denounced.

18I was told that you committed the offences in order to feed your ice habit, which was apparently raging at the time.  It was not so afflicting that you were not able to plan the burglary and carry out the plan, albeit that some aspects of this were rather unsophisticated.  Whilst in gaol, you have abstained from drug use, which is a practice that you have observed on the various occasions of your incarceration.  Your drug use is no excuse and the fact that you have been unable to finally defeat addiction, gives me cause for concern as to your prospects of rehabilitation and for the protection of the community.  On the other hand, you are now 36 years old and have had a very harsh experience of gaol on this occasion, which seems to have impacted on your resolve to finally rehabilitate.  I also factor in that your drug use is very much related to the post-traumatic stress disorder that you have suffered from since you were sexually abused all those years ago.

19I put you on notice, Mr Burton, if you did not know already, that there is a connection between your abusing drugs and committing offences.  If you abuse drugs in future and commit offences, then your decision to do so may well be treated as an aggravating feature by the sentencing judge.  No doubt my sentencing remarks will be made available to the judge who deals with you.

20I take into account your criminal history, some of which is directly relevant to the offences before me.  Your criminal history commenced in 2001 with possess and use ecstasy charges, for which you were fined without conviction.  In 2006 you were sentenced to a total effective term of four months' imprisonment for two charges of theft and two charges of trafficking cannabis. On 1 December 2006, you were sentenced to a total effective sentence of four years' imprisonment, with a non-parole period of 32 months' for armed robbery and theft.

21On 3 December 2010, in the Melbourne Magistrates’ Court, you were dealt with for handling or receiving stolen goods, dealing with property suspected of being proceeds of crime, possession of methylamphetamine and of cocaine, as well as possession of a prescription drug and a Schedule 4 poison.  You were also convicted of using heroin, using methylamphetamine and a further charge of dealing with property suspected of being proceeds of crime, possessing an explosive substance without excuse, as well as driving offences.  You were sentenced to 200 days imprisonment, but ordered to serve an aggregate of 108 days immediately, by way of a partially suspended term, with an operational period of 18 months.  One hundred and eight days was the period that you had already served, which was declared as pre-sentence detention.  You were also given the benefit of a community based order, which was to run for 12 months and a drug treatment condition was included as one of the conditions.

22On 1 October 2012, you were dealt with for failing to comply with that community based order and dealt with for further offences, which included four charges of failing to answer bail and theft, as well as possessing a drug of dependence and possessing a Schedule 4 substance, and driving matters. You were sentenced to an aggregate term of 60 days gaol, to be served concurrently and pre-sentence detention of 230 days was declared.  You were also dealt with for breaching suspended sentences of 1 October 2012, for driving whilst suspended, handling stolen goods and dealing with proceeds suspected of being proceeds of crime.  The suspended terms were restored.  The period was reckoned as having already been served and pre-sentence detention of 230 days was declared on that occasion.  I was told that you subsequently served a further gaol term, before successfully appealing against the restoration of the suspended sentences of 25 October 2012.  As a result of all of this, it is agreed that you served 165 days that you ought not have served, which is a matter to which I will refer in due course.

23Your criminal history and drug history does not bode too well for your prospects of rehabilitation, although I note that you have no prior convictions for burglary and I understand that the harshness of remand on this occasion has been a salutary experience for you.

24I consider that your role in the offences on the indictment was fairly similar to Mr Till’s, although he tried to attack police and you did not, which places him in a slightly more serious situation, insofar as the offending itself is concerned. 

25You both have relevant criminal histories, however your criminal history is far more recent than that of Mr Till’s, and in some respects, is somewhat more serious.  You were frank and co-operative with the police in your record of interview, whereas Mr Till was not co-operative, albeit that this cannot count against him, as he was entitled to make a "no comment" record of interview. However your co-operation at that stage, counts in your favour.  On the other hand, unlike Mr Till, you then absconded, failing to answer bail, an offence for which you have a number of prior convictions.  It was over a year before you were apprehended, albeit that once you were arrested, you pleaded guilty at the earliest opportunity.  Mr Till faced up to his matters at a far earlier time.  In this way, he has facilitated justice to a greater extent than you have, as the authorities were not put to the time, effort and expense no doubt of finding him, as they were in your case.  I accept that your answers in the record of interview did bespeak some remorse, although this has to be seen in the context of fairly deliberative conduct, insofar as the offending itself is concerned, and you subsequently absconded.  In the end, I allow for some remorse.  

26I allow for a fairly significant discount in the sentence you would otherwise receive because of your pleas of guilty.  When you were caught up with, you pleaded guilty without the need for a contested committal hearing and trial, therefore you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.

27Insofar as failing to answer bail is concerned, I was told that your severe ice addiction clouded your judgement and you panicked at the prospect of having to face up to court.  I was told that you have a long-standing history of drug abuse, in circumstances where you were sexually abused at the hands of a step-brother.  He has been living overseas for the past 20 years and it has never been reported to the police. Although I was handed a report from Mr Cummins psychologist, it would have been helpful however to have received a report from a psychiatrist who apparently diagnosed you with post-traumatic stress disorder when you were 25 years old.

28In any event, I take into account that you have this condition and that you have used drugs as a result of this.  It was not submitted that your
post-traumatic stress disorder was an impairment in itself which impacted on your moral culpability, but I take this into account in a general way as being a condition you have suffered from for many years, as a result of your
step-brother’s dreadful actions towards you.  This condition will make time in gaol harder than it would otherwise be and I make an allowance for this.

29I was told you commenced using cannabis and ecstasy when you were 20, then experimented with heroin. More recently you have been abusing ice. Mr Cummins, psychologist, was of the view that you needed treatment in a residential facility for this and you seem to have come to this realisation too.

30I  factor in that since being on remand, you have been subject to a 23 and a half hour lockdowns for most of that time, which has made time in gaol far harder than would otherwise be the case.  I make further allowance for the fact that for the first seven weeks of the lockdown period, which commenced on 1 July 2015, you were locked down for 24 hours with no access to phones, TV or other facilities you would otherwise have.  You were not involved in any of the riots which led to this situation.

31I take into account your background, which is a most difficult one.  Your parents separated when you were only four.  Your father was a Vietnam veteran, who was a violent alcoholic.  You have had limited contact with him over the years and he now resides in Vietnam.  Your mother and older brother share a house in country Victoria.  Your step-brother, as I have said, sexually abused you.  This happened when you were between the ages of six and twelve.  He is 12 years older than you.  You have a strained relationship with your mother, due to your resentment toward her for failing to protect you against your step-brother.  She only learned of the sexual abuse when you were 24 years old and you were advised of this following your arrest for armed robbery.  These are all issues which you really need to deal with. Mr Burton, if you are to change your ways.  Do you understand that?

32You attended school until Year 10, leaving when you were 16.  You were able to complete a carpentry apprenticeship after leaving school and have worked sporadically as a carpenter.  Unfortunately your addiction to drugs interfered with your ability to hold a job for too long.  Your drug use also contributed to the breakdown of a long term relationship, although I note that the relationship was still on foot when you committed the offences before me.

33I was told that your mother is supportive of you and that you are welcome to live with her upon your release from gaol and this is what you intend to do. Stable accommodation and family support are positive matters in respect of your rehabilitation and you really should take advantage of those, having hopefully worked through the issues which you have with your mother. 

34Insofar as parity is concerned, I consider that there are matters which are personal to you, which just about balance out those matters personal to
Mr Till.  Each of you have or will suffer harsher conditions in gaol for different reasons, although the lockdowns will cease once you leave remand.  While you admitted guilt straight away, Mr Till did not.  While you fled, he did not and therefore he pleaded guilty to the offences on the indictment at an earlier time than you did.  However, when apprehended, you pleaded at the earliest opportunity.  You both have relevant criminal histories, although yours is more recent and there are some aspects of it which are more serious that than of Mr Till’s.  You are somewhat younger than he, but neither of you are youthful offenders.  You also face a charge of failing to answer bail and you have four prior convictions for this offence.

35There are two other matters which apply to you and not to Mr Till.  Firstly that you have served 165 days in relation to other matters in 2012, which is unaccounted for by any other sentence to date.  It is referred to, on occasion, as  "dead time".  The second matter is that your case is being dealt with after the Court of Appeal decision of Boulton v The Queen (2014) 46 VR 308, whilst Mr Till’s pre-dated this decision, although only just.  

36I must say that it seems rather unfair that your failure to face the courts sooner than Mr Till has effectively led to an advantage that he did not have.  However, that is the position and you are entitled to rely on this decision, which promotes the use of community corrections orders, even if in combination with a gaol term, in an appropriate case.

37As to the first matter to which I just referred, as I understand the authorities, it is a matter for me to decide whether to reduce the sentence I would otherwise impose, and if so, to what extent, in view of the fact that in 2012 you served 165 days longer than you should have.  

38As has been observed in the Court of Appeal, "dead time" is not to be regarded as a credit in a bank account that a prisoner is entitled to draw on at any time or to automatically derive the full benefit of.  Having viewed the authorities, it appears to me that, if I am persuaded to make an allowance,
I do not have to specify this in figures or percentages.  

39In the circumstances of the case before me, in view of the fact that a number of matters which were not appealed are relevant to the offences before me, such that gaol did not serve as a deterrent in 2012, but also in view of the fact that you were imprisoned 165 days beyond your sentence, I make some allowance for this period in sentencing you.

40Overall, I find that your position, insofar as parity is concerned, is slightly more serious than Mr Till’s however, as I have said, you are the beneficiary of
Boulton, whilst he was not.

41Mr Kelly’s primary submission at the original plea hearing was that, matters as between you and Mr Till essentially balanced each other out, such that a sentence which was similar to his was appropriate.  He received a total effective sentence of 14 months’ imprisonment, with a non-parole period of eight months. 

42You have since instructed Mr Kelly that a community corrections order, in combination with a gaol term, is your preferred course, as you are really wanting to address your drug and other issues and that you need the structure and help that a community corrections order can afford.  Mr Kelly has since made submissions that this would be appropriate in your case and the prosecution does not oppose this submission.

43I am of the view that it makes sense that you address your drug and psychological issues sooner rather than later if you are to hope to rehabilitate, but you first must serve a further term of imprisonment.

44Would you please stand up, Mr Burton.

45You are convicted of each of the offences and you are sentenced as follows:

46In relation to the charges, I intend to place you on a community corrections order of 18 months' duration, plus impose an aggregate term of nine months' imprisonment.   

47The community corrections order that I propose, as I say, will run for
18 months and have the following conditions attached.

48The terms of the order will be as follows:

49First of all the mandatory terms that apply to all community corrections orders, which are:

·You must not commit another offence for which you could be imprisoned during the time that the order is in force;

·You must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011;

·You must report to and receive visits from the Secretary to the Department of Justice or his or her delegate;

·You must report to the Moorabbin Community Corrections Centre before 4 pm, within two clear working days of your release from gaol;

·You must let a community corrections officer know within two clear working days of you changing your address or job;

·You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate; and

·You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.

50The conditions that apply in addition to the mandatory terms to which I have just referred are as follows:

Community Work

·You must undergo 200 hours of unpaid community work within the next
18 months;

Supervision

·You must be under the supervision of a Community Corrections Officer for a period of  18 months;

Treatment and Rehabilitation

·You must undergo assessment and treatment, including testing, for drug 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, if required, as directed by the Regional Manager; and

·You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager.

51Mr Burton, having heard the proposed conditions of the order, do you consent to the terms and conditions of the proposed order?

52OFFENDER:  Yes. 

53HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this community corrections order, then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge, in which case, you may well be sentenced to a period of imprisonment.  I would regard a breach of a community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

54Do you maintain your consent to the proposed order?

55OFFENDER:  Yes.

56HER HONOUR:  Therefore, in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that
I have just set out, as well as an aggregate term of nine months’ imprisonment.

57I declare that you have already served 180 days pre-sentence detention and
I indicate that I have taken into account the 165 days you previously served in respect of the other matters in 2012.

58I will have Mr Kelly approach the dock and ask him to assist you with the signing of the community corrections order.

59I indicate that, pursuant to s.6AAA, if not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and eight months' imprisonment, with a non-parole period of two years and two months' imprisonment.

60Could you just take a seat for a moment please, Sir. 

61Is there anything arising out of those sentencing remarks? 

62COUNSEL:  No, Your Honour.

63HER HONOUR:  All right, thank you for your assistance. 

64If you might remove Mr Burton, thank you. 

65We will now adjourn. 

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