Director of Public Prosecutions v Burzacott
[2023] VCC 715
•24 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00035
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON BURZACOTT |
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JUDGE: | HIS HONOUR JUDGE KELLY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 April 2023 |
DATE OF SENTENCE: | 24 April 2023 |
CASE MAY BE CITED AS: | DPP v Burzacott |
MEDIUM NEUTRAL CITATION: | [2023] VCC 715 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Attempted armed robbery – Possess firearm contrary to firearm prohibition order – Theft
Legislation Cited: Sentencing Act 1991
Cases Cited:Berichon v The Queen [2013] VSCA 319; Bugmy v R (2013) 169 CLR 571; Hogan v Hinch (2011) 243 CLR 506; Director of Public Prosecutions v Merrett & Ors [2007] VSCA 1; R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen 96 MVR 344.
Sentence: 5 years’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | |
For the Accused | Mr N. Brown |
HIS HONOUR:
1Aaron Burzacott, you have pleaded guilty to one charge of attempted armed robbery, contrary to s75A and 321M of the Crimes Act 1958; one charge of possessing a firearm contrary to a Firearm Prohibition Order, contrary to s112B of the Firearms Act; and one charge of theft, contrary to s74 of the Crimes Act. The maximum penalties for these offences are as follows: for attempted arm robbery, 25 years' imprisonment; for possessing a firearm contrary to Firearm Prohibition Order, 10 years' imprisonment; for theft, 10 years' imprisonment.
2On 1 March 2021, Mr Grae, the complainant in this matter, was working in Maryborough painting a roof. At about 1.30 pm he met Madison Epworth in Maryborough. Epworth asked him if he could give her a lift to her friend's house after he finished work. She did not say who she was meeting or where. Between 3.10 pm and 5.23 pm, Christopher Llewellyn, your co-accused, exchanged a series of text messages with Ebony Murphy. Epworth told him she was coming to see him soon.
3At 4.37 pm you sent a text message to Llewellyn saying, 'Oi, come here AWAP', corrected to 'ASAP', and a further text message at 4.53 pm saying, 'Sorry bro, I have to see this cunt'. At 4.38 pm you sent Lauren Kellard an SMS message stating, 'Babe, Nelson Brown if shit goes bad, love you'. At about 5.17 pm you sent Epworth a Google map location. Grae picked Epworth up after finishing work at about 5.15 pm. He began driving with her towards Castlemaine to get home to Bendigo. He was driving a 2018 Toyota Hilux belonging to his boss, Mr DeGroot.
4Epworth was looking at Google Maps on her phone. She asked Grae to drop her at a location on the way back to Bendigo. Grae turned into Berringa Road and saw a silver Holden Commodore wagon pulled to the side of the road. Your co-accused, Llewellyn, was standing beside the car. He waved at Grae and Epworth, and told Grae to stop. Grae stopped near the Commodore. Grae asked Llewellyn if he was 'good'. Llewellyn pulled the Toyota's keys out of the ignition. Grae asked what he was doing. Grae then saw you get out of the Commodore. You were holding a sawn-off shotgun, which you raised at him. And these are the facts underpinning Charge 2, possession of a firearm.
5Grae began to run; you yelled for him to stop running and said, 'Keep fucking running and I'll just let this off'. He fell over, he was scared and walked back to the cars. You told Grae, 'You owe Mollie money.’ Grae was formerly in a relationship with one Mollie Cahill. Grae disputed that he owed Ms Cahill money. Llewellyn had Grae’s phone, he gave it to Grae and told him to transfer money immediately. Grae said he did not have any money. He was told to log on to his internet bank account and to show Llewellyn and you his bank balance on his phone. Grae complied. And those are the facts underpinning Charge 1, attempted armed robbery.
6Grae was told to get into the Commodore. Llewellyn said, 'You're gonna be at least four hours away from people, so that you cannot contact people.’ Llewellyn grabbed Grae under his arm; Grae believed he was going to be put in the Commodore. Grae pulled away from Llewellyn and ran. Grae heard Llewellyn say to you, 'Burzacott' and 'Let's go'. Grae kept running and eventually saw the Commodore and the Toyota both driven away. And those are the facts underpinning Charge 3, theft.
7The Toyota had in it work equipment belonging to DeGroot, Grae’s iPhone 8 and two house keys. Eventually Grae found a house, knocked on the door and asked the residents for assistance. He called the police using their phone. You were arrested at your home on 10 March 2021.
8I turn now to your background. You were born in August 1982 in Katherine in the Northern Territory. You are 40 and are the eldest of six siblings. You have not had contact with your father for 10 years. You maintain regular contact with your mother and have a partner, Lauren, who visits you in custody weekly.
9You are an Aboriginal man with ties to the Yorta Yorta and Dja Dja Wurrung people. At age four you moved with your family to Mount Gambier in South Australia. Your parents separated when you were 14. You, your father, and your siblings moved to Darwin, your mother moved to Melbourne. In Darwin you attended Dripstone High School, but left school at the end of Grade 9. When you were 15 you witnessed your father's friend get shot and murdered. After leaving school you began to drink heavily and use cannabis.
10Your childhood was marred by disadvantage. Your father was an alcoholic and you both witnessed and were a victim of family violence on the part of your parents. You were also exposed to family violence within the greater family group, and you saw your aunts and uncles get arrested. When you were 17 you moved to Bendigo, where your mother was living at the time. You moved to separate yourself from your peers. You used heroin since you were 25 and have used methamphetamine on a daily basis from the age of 30. In 2002, you experienced your first period of custody in Malmsbury in Victoria.
11Your current period on remand is the longest continuous time in custody you have served. During this period you have completed several programs and courses, you have also worked as a peer educator for your fellow inmates.
12Your counsel submits the following as mitigatory factors. One, your plea of guilty and its utilitarian benefit to the court, which I will come to later. Two, your time spent in custody to date. Three, the effect of COVID-19 on your time spent in custody. And four, the effects of your childhood social depravation on your offending.
13You were remanded in custody on 10 March 2021 and have since spent, on my count, 775 days in custody up to but not including today. It is submitted that you have used your time in custody fruitfully, acting as a peer listener for your fellow inmates and completing several courses and programs, including AOD and communication, and various ATLAS programs, including (1), Adapt; (2), Jobs and Careers; (3), Family, Friends, and Community; (4), Healthy Living; (5), Houses and Homes; and (6), Managing Emotions. It is submitted that these activities demonstrate a commitment to rehabilitation.
14Upon being remanded you were subject to 14 days in medium isolation as a result of COVID-19, and you have experienced prison lockdowns. You had little communication with your family as a result of the protocols introduced by prisons to manage the COVID-19 pandemic and you were unable to have contact visits as a consequence. Your counsel refers me to The Queen v Biba as authority for the proposition that COVID measures have made prison time more onerous and a sentence can be appropriately moderated to reflect this disadvantage.[1]
[1][2021] VSC 327.
15A report from Mr Jeffrey Cummins, psychologist, was tendered at your plea. It is dated 29 November 2022.
16Mr Cummins quotes you as saying:
I've spent a lot of time in jail. I spent three months in Don Dale Detention Centre in the Territory, and I've spent a lot of time in Malmsbury. I got to the point where I just didn't care and I was abusing alcohol and drugs and I became desensitised to violence. I was raised in a violent family because I was seeing physical violence between Mum and Dad all the time, and I got severe beatings from both Mum and Dad.
17You told Mr Cummins that you underwent traumatic experiences during your incarceration at the Malmsbury Youth Justice Centre, and I will not elaborate on those experiences in these remarks. You estimated that you would have spent a total of 14 years in adult prisons, however your longest period in custody is your current time on remand.
18You told Mr Cummins that you had always wanted to complete an apprenticeship in automotive work or plastering, although you have never started one. You have done some casual and limited labouring, which often involved cleaning work. You estimated that you were last working in 2013 or 2014. When you are at liberty, you are usually in receipt of a job search allowance.
19You told Mr Cummins that although you have never been hospitalised in a psychiatric ward, you have attempted suicide in the past. One such attempt was when you were 25 and had just been released from custody. You said you 'had nothing and no one’. You tried to shoot yourself but the gun did not fire. The other attempt recorded by Mr Cummins was just before your most recent arrest. You said you 'took pills and were just hoping to die'. I note that Mr Brown, on your behalf, did not rely on the principles in the case of R vVerdins,[2] but the fragility of your mental state was relied upon as background, which sets your offending in its proper context.
[2] [2007] VSCA 102.
20You detailed a history of drug use including alcohol abuse, heroin use from the ages of 25 to 36, methamphetamine from the age of 30, including a period of daily use when you were last at liberty, and GHB use from the age of 30, including a period of daily usage when you were last at liberty. You also said that you were under the influence of GHB and methamphetamine at the time of your offending on 1 March 2021.
21You acknowledged to Mr Cummins that you feared you were already somewhat institutionalised. You believe you function better when in custody as you do not use drugs. You acknowledged you had a problem with impulsivity.
22Mr Cummins reports that you acknowledged that you will probably face further imprisonment for these offences, given your criminal history. You apologised for the offending the subject of these remarks. You also spoke candidly about your problems when asked whether you would participate in a violence intensive program whilst in custody. You said:
‘I'd do it but my real problem I feel isn't anger, but rather it's a drug problem. I really don't have much of an issue with impulsivity or with anger when I'm straight. It's when I'm under the influence of drugs that I make irrational decisions.’
23You stated that if offered a place in a residential drug treatment program, you would willingly participate in that program.
24You were described by Mr Cummins as being 'of below average intelligence'. You believe you sometimes have problems with long and short-term memory. In Mr Cummins' opinion, your history is suggestive of you suffering from borderline personality disorder, which is characterised by impulsivity, turbulence in relationships and low self-esteem.
25You stated that you felt settled on remand and frightened about being released back into the community. When at liberty, you get into trouble with the law; when in custody, you are a model prisoner. Mr Cummins ultimately assessed your risk of reoffending to be somewhere between moderate and high, and urged that you be directed to participate in a violence intensive program or an equivalent.
26To the prosecution's submissions. The prosecution concedes that the principles in the case of Bugmy apply, and I will discuss the application of these principles in your case later on. However, it is submitted that this offending is planned and serious. It is also conceded that there has been some delay. Ultimately, the prosecution submits that a head sentence with a non-parole period is the appropriate disposition in all the circumstances.
27A victim impact statement written by Jake Grae was read out at your plea hearing. He writes that when the offences were committed he was in a state of shock, disbelief, he was depressed and anxious. He was embarrassed to face his work supervisors, due presumably to the loss of work equipment. He suffered from a lack of self-belief and from extremely low confidence.
28Since the offending, his life has changed. He does not enjoy a social life as much as he used to because of paranoia. He had to resign from his job because of the fear of being responsible for any further loss of expensive business equipment. His sleep at night is affected because of his fear.
29Your offending has also impacted his relationship with his partner, given his stress, paranoia, and fear. The offending also affected him financially, costing him over $12,000 for the replacement of equipment.
30As to the objective gravity and the moral comparability, this is a serious incident of the offence of prohibited person possessing a firearm. As Redlich J in Berichon v The Queen said, the offence itself can generally be divided into one of two broad categories:
The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate, unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence.
The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose. More severe sentences are then usually in order. Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity, to provide security, or as a means of enforcement. The prior convictions of the offender, in conjunction with the circumstantial evidence, may also enable the conclusion to be drawn that the possession is for some unlawful activity.
31You have relevant prior convictions, and your use of a prohibited weapon in this case was in furtherance of a serious indictable crime. Your offending falls into the second of the two categories identified in Berichon, and as such, the objective gravity of your offending is high. The attempted armed robbery is also a serious example this offence. Not only were you in company; you planned to confront your victim in a remote spot, you threatened to shoot him, and you pointed a loaded firearm at him, instilling a profound fear in him.
32To your criminal history. You have an extensive criminal history with many prior relevant offences. These include convictions for theft, theft of a motor vehicle, and theft from a shop, burglary and aggravated burglary, possession of a controlled weapon without excuse, possession of cartridge ammunition without a licence or a permit, carrying a firearm whilst a prohibited person, and possessing a firearm whilst a prohibited person. Your counsel concedes that your criminal history is serious and relevant. It does not augur well for your prospects of rehabilitation.
33To your plea. You have pleaded guilty to these offences following a contested committal hearing and a sentence indication. Although not a plea at the earliest possible stage, I do take into account the fact that you made a number of offers to the prosecution following the committal hearing. I have also taken into account the fact that your plea of guilty has saved the court the costs associated with running a trial, and saved witnesses and the complainant from the burden of having to give evidence.
34Therefore, your plea has significant utilitarian benefit and I have mitigated your sentence accordingly. Having entered your plea during a period in which the court is still negotiating the effects of the COVID-19 pandemic, I accept that your plea has further utilitarian value, and I have moderated your sentence in keeping with the principles articulated in Worboyes v The Queen.
35To Bugmy. Your counsel submitted that your childhood exposure to violence, alcohol abuse and domestic dysfunction enlivens the principles enunciated by the High Court in Bugmy. It was conceded by the prosecutor at your plea hearing that these principles are applicable in your case. In Bugmy the High Court said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood depravation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing disposition.
36In your case, Mr Burzacott, I accept that you have experienced a childhood rife with social depravation. I note that you were brought up in a physically violent family environment, both witnessing physical violence between your parents, as well as being the recipient of such violence from them.
37You reported to Mr Cummins that you spent time in juvenile detention centres, during which you have experienced further traumatic events, which have left an impact on you. I am prepared to find that your childhood depravation has predisposed you to violent offending and institutionalisation, and I am prepared to moderate your sentence on this basis.
38To rehabilitation. Your current period on remand is the longest period you have spent in custody. During your plea it was submitted by your counsel that this delay of approximately 24 months was due to factors which were outside your own responsibility. It was also submitted that during this time you have made the best of the opportunities available for reform, and that you are doing what you can to begin a new chapter of your life. There are a number of ways in which a sentencing court can take into account the delay between the offending and sentence. As the Court of Appeal said in Merrett, Piggott, and Ferrari:
The relevance in delay lies rather in the effect which the lapse of time, however caused, has on the accused. Delay constitutes a powerful mitigatory factor, in particular it focuses on issues of rehabilitation and fairness.
39From the same case, President Maxwell, as he then was, later observed:
There is very great benefit to the community, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this court, by its own sentencing decisions, recognises and rewards efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution, which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.
40A letter you wrote dated 22 February 2023 was provided to the court. In it, you describe how you have made progress whilst in custody. You became an ATLAS program mentor and a peer educator for your fellow inmates. You say that you learnt patience and a great deal of responsibility. You explain that you would like to become a youth worker to help young adults take the right path before it is too late. This goal, if genuine, provides a basis for cautious hope as to your prospects of rehabilitation.
41Your letter also demonstrates that you have developed insight into your offending and its root causes, as well as recognising the hurdles you are likely to face following your eventual release. This accords with the comments you made to Mr Cummins during your interview with him. I have taken into consideration both the practical and internal progress you have made whilst on remand when assessing your prospects of rehabilitation and have moderated your sentence on the basis of this assessment of your prospects.
42Against this, I have had regard to your lengthy criminal history. You have a number of prior convictions which are relevant to this sentencing exercise. You have been persistently unsuccessful at avoiding reoffending. At your plea, your counsel indicated that you have been consistently unable to remain abstinent from alcohol and illicit substances throughout your life.
43Mr Cummins has also assessed the likelihood of your reoffending to be significant and your rehabilitation prospects as guarded. I note that you had been at large for a period of six months at the time of the commission of these offences. I regard your prospects of rehabilitation as guarded.
44To sentencing principles. Section 5 of the Sentencing Act1991 provides that the only purposes for which you may be sentenced are (a), to punish you in a manner and to an extent which is just in all the circumstances; (b), to deter you or others from committing similar offences in future; (c), to facilitate rehabilitation; (d), to manifest the denunciation of your conduct; (e), to protect the community; (f), or a combination of two or more of these purposes.
45The gravity of your offending in this matter is high, and the seriousness of your actions necessarily attracts the need for strong denunciation and deterrence. The community is entitled to be protected from this kind of violent and terrifying offending. However, in light of the fact that your offending has been considerably impacted by your childhood depravation, and you have demonstrated progress towards your reformation whilst on remand, rehabilitation has a substantial role to play, notwithstanding your age and your substantial history of prior offending. As French CJ in Hogan v Hinch said, 'Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.'
46I will ask you to stand now, Mr Burzacott.
47Aaron Burzacott, I sentence you as follows. On Charge 1, attempted arm robbery, you are convicted and sentenced to four years' gaol. This forms the base sentence.
48On Charge 2, possessing a firearm contrary to a firearm prohibition order, you are convicted and sentenced to two years’ gaol. I order that one year of this sentence is to be served concurrently with the sentence in Charge 1.
49On Charge 3, theft, you are convicted and sentenced to one year’s gaol, to be served concurrently with the sentence on Charge 1.
50This leaves with you a total effective sentence of five years' imprisonment, and I fix a non-parole period of three years. Pursuant to s18(4) of the Sentencing Act 1991, I declare that you have spent 775 days in custody by way of presentence detention, to be reckoned as time served. Pursuant to s6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have imposed a sentence of seven years' gaol with a non-parole period of five years.
51Mr Plummer, any ancillary orders?
52MR PLUMMER: No, Your Honour.
53HIS HONOUR: Very well.
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