DPP v Burrows
[2001] VSC 515
•21 December 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT SALE
CRIMINAL DIVISION
No. 1414 of 2001
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAWSON JOHN BURROWS |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 December 2001 | |
DATE OF SENTENCE: | 21 December 2001 | |
CASE MAY BE CITED AS: | DPP v Lawson John Burrows | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 515 | |
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Criminal law – sentencing – murder – use of firearm to resolve emotional difficulties – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr W. Morgan-Payler QC | OPP |
| For the Accused | Mr. L. Hartnett | VLA |
HIS HONOUR:
Mr Burrows, you have been found guilty by a jury of the murder at Mallacoota in the early hours of 12 August 2000, of Mr Christopher Shane Winward.
On Friday 11 August 2000, in Mallacoota, you Mr Burrows had been working during the day. The deceased, Mr Winward, had that day attended a funeral of a local leading resident, Mrs Kath Orford. Independently and separately you and Mr Winward arrived at the local hotel, the Mallacoota Hotel, at about 6 p.m. Eight hours later in the car park of that hotel you shot Mr Winward dead. You shot him because of your anger at having been humiliated by him in the hotel.
Then, as Mr Winward, whom you had known for 15 years, lay dying in the hotel car park, and having done nothing to help him you fled the scene. You were arrested later that day in Merimbula, New South Wales. Here in Sale in October 2001 before a jury, you pleaded not guilty to the murder of Mr Winward. Before the jury you gave evidence that the shooting was accidental, you were found guilty of murder by the jury. I now impose sentence upon you.
You have now served 496 days of pre-sentence detention. Pursuant to s.18(4) Sentencing Act 1991 I declare that period of 496 days as already served of the sentence I impose upon you, and I so certify.
On that Friday evening, 11 August 2000, from 6 p.m. you remained at the hotel drinking beer and then Jack Daniels and Coke. At 7.30 p.m. you had taken a friend to a girlfriends', had a pizza and returned to the hotel at 8.30 p.m. You recommenced drinking. Largely you were drinking by yourself, you were not in a sociable mood. The deceased, whose partner, Clare Trebilco, worked as a barmaid at the hotel, also was at the hotel and remained there until after closing time, 1 a.m. on the Saturday waiting for Ms Trebilco to finish work.
A band from Lakes Entrance, Side Effects, was playing during the evening in the rear bistro bar of the hotel, the band finished its last set at 1 a.m. Thereafter its members packed up and its base guitarist, Mr Forrester, was sitting in the rear bar with a view into the beer garden at the north side of the hotel. After 1.30 a.m. he saw an incident between you and the deceased. You and the deceased had been talking, you then pushed the deceased to his left shoulder. In response the deceased, physically a smaller man than you, punched you rapidly three times to the face. You staggered back with your nose bleeding profusely. You then left the beer garden, muttering the words "You'll get yours."
The deceased went about his normal affairs inside the hotel, he was not in an aggressive mood. The hotel had closed to the public at 1 a.m. and members of the public slowly left the premises. Ms Trebilco's duties concluded around 2 a.m. She had two drinks, did not complete the second and at about ten to two, left the front bar of the hotel with the deceased. She had had good news which she had shared that evening with the deceased. They walked south, some 20 metres along Maurice Avenue to their four wheel drive, which was parked in the hotel car park on the south side of the hotel, abutting Maurice Avenue. They got in their vehicle with Ms Trebilco entering the driver's seat and the deceased the front passenger seat.
It was their habit to leave the vehicle's keys on the floor of the vehicle, Ms Trebilco picked up the keys, turned to her left to rearrange some jumpers in the vehicle and through its left rear window saw you at the diagonally opposite side of the car park. She did not see what you were holding. In fact you were holding, down your right side, a loaded shotgun. You had occupied yourself in the 20 minutes since you had been struck by the deceased, you left the beer garden at about 1.45 a.m., you drove your vehicle to your home in Shady Gully Drive, Mallacoota, there you obtained from its hiding place under the house an illegal slide action shotgun.
You obtained ammunition from your bedroom, you then, with the slide action shotgun and the ammunition, returned to the hotel. On the way to and from your home you passed a group of young local persons who had left the hotel after 1.30 a.m. and were slowly walking home towards Mirrabooka Hill. As is the custom in Mallacoota you offered them a lift which they declined. On your return trip you stopped briefly where the group was but did not speak.
You then returned to the area outside the hotel and parked your vehicle on the median strip in Maurice Avenue outside the hotel, and to its north. You then loaded your shotgun. You had a view of the front of the hotel whence its employees would leave. As I have recounted, shortly after 2 a.m. Ms Trebilco and the deceased left the front of the hotel. They walked south along Maurice Avenue to their four wheel drive parked in the south-east corner of the hotel car park, facing Maurice Avenue. You left your vehicle and followed them.
However, you did not follow them right up to their vehicle, as they proceeded directly south along Maurice Avenue to their vehicle you deviated right into the car park and proceeded along its perimeter, into its north-west corner diagonally opposite their four wheel drive vehicle. It was there that Ms Trebilco observed you through the left rear window of their vehicle as she was preparing to drive herself and the vehicle from the hotel.
When Ms Trebilco saw you in the hotel car park she spontaneously said to the deceased, "Lawson's there, it's Lawson." The deceased immediately alighted from the passenger side of the vehicle and walked directly towards you. He said, "Do you want to have another go?" You did not reply with words, rather, you raised the loaded shotgun you had, pointed it directly at him and shot him in the throat.
The deceased was a little over a metre from the barrel of the gun when you pulled the trigger. At that stage he was reaching for the gun to deflect its direction. You pulled the trigger before he was able to reach and deflect. The deceased immediately fell to the ground, Ms Trebilco rushed forward calling out, "You have shot him, you have shot him." Your response was to disappear into the shadows.
The deceased died rapidly from a shotgun blast fired from a metre away, directly into the middle of his neck. You had had substantial experience with firearms, the shotgun you used was your own. It was a slide action shotgun, the unauthorised possession of which was illegal, its magazine held five rounds. For it to discharge the safety catch had to be in the "off" position. You gave evidence that you had had the shotgun in your vehicle since lunch time because you were going rabbiting, that you did not obtain it from your home after you had been punched by the deceased, that you only wanted to talk to the deceased in the car park and the gun was there for protection and that the deceased ran at you and grabbed the gun, causing it to discharge. All false.
Ms Clare Trebilco, the partner of the deceased, gave evidence before the jury. She was a dignified person and a most impressive witness. I accept the truthfulness and accuracy of her evidence. It was after you had been thrice struck by the deceased that you left the hotel, muttering "You'll get yours." The group of young persons who were slowly making their way home towards Mirrabooka Hill, did not observe any blood on you in your car, because in the then conditions of lighting and observation they did not see any blood such as was then present.
The evidence of Dr Lynch and Senior Constable Glaser confirms the direct eye-witness evidence of Ms Trebilco, that the deceased was a metre or two from the gun when you shot him. After disappearing from the scene you drove home, left a note for your mother and drove away from Mallacoota. You disposed of the incriminating shotgun at a place you still refuse to divulge. Later on that Saturday you were in Merimbula, New South Wales, provisioning yourself for a flight to the hinterland when you were apprehended by New South Wales police.
You are now 27 years of age, you turned 26 on the day of the offence. You were adopted at infancy by loving parents, who have nurtured you and to this day who are fully supportive of you. You have no relevant prior convictions. You have no history of violence, on the contrary the evidence led before me on the plea is that you are a non-violent person. I take into account significantly in your favour that evidence and the other material and considerations presented before me so ably by your counsel, Mr Hartnett on your behalf.
Tendered before me is a comprehensive report of Mr Michael Crutzen, psychologist, of 20 December 2001. Mr Crutzen reviewed your personal history, including the suffering you endured through the wrongful actions of an adult abuser, when you were very young. I take those matters Mr Crutzen has reviewed, directly into account. You suffer no psychiatric illness or form of psychological disorder. You are an intelligent person. You do have remorse for your crime, despite the evidence you gave before the jury. You have significant prospects for rehabilitation as is evidenced by your conduct in custody and by the witnesses called before me on the plea, who were most impressive, including your mother.
You have the continuing and loving support of your family, present here in court and in court throughout the proceedings. I have no doubt that the influence of alcohol played a part in the events of that fateful night. Alcohol fuelled your resentment and anger and facilitated its expression, however you were not drunk, you knew precisely what you were doing.
The court must seek to deter the presence and use of firearms as a means of resolving emotions, especially in combination with alcohol. That Saturday 12 August was your birthday, in an exception to your general moroseness on that Friday evening after 1 a.m. when you collected from the licensee the dozen bottles of beer you earlier had ordered, you told him it was your birthday, the licensee wished you well and at that point of time you were happy.
In a perceptive note, tendered on the plea, your family friend, Dr Leslie Sedal, consultant neurologist of St Vincent's Hospital, observed that adopted children even those in families like yours, which are loving and supportive, are vulnerable on their birthdays. I consider that was one factor affecting you that night. Another significantly related factor was that you felt an outsider in Mallacoota. From the time your family moved there in your youth you did not feel accepted.
Another significantly related factor was that in your youth you had always been large for your age and on this night were dealt with by a man smaller in stature. A further factor was that you were a long-term user of cannabis and that use predisposed you to persecutory thinking, short of mental illness. Further, you had recently separated from your female partner in New South Wales in unhappy circumstances and had returned to Mallacoota, itself a place of unhappy associations.
The confluence of all those factors goes a considerable distance to explaining your deliberate actions that fateful night and as I have said, the emancipating factor of your anger and resentment was alcohol. However, the hard fact remains that you were a person with no mental illness or psychological affliction who knew precisely what you were doing and who acted with significant deliberation. You deliberately went home and got your slide action shotgun and its ammunition. You deliberately returned to the hotel and loaded the weapon. You deliberately followed your victim for more than 30 metres and when he approached you, before he reached you, you deliberately shot him dead.
Mr Winward was 33, almost 34 years of age when he died. Your actions have afflicted the lives of Mr Winward's partner and of his loving family. The victim impact statements filed before me are moving and impressive documents.
Mr Burrows, for the murder of Christopher Shane Winward, I sentence you to 18 years imprisonment. I direct that you serve a minimum term of 14 years imprisonment before being eligible for parole.
Mr Burrows may be removed.
(Prisoner removed.)
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