R v Burge
[2022] ACTSC 376
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Burge |
Citation: | [2022] ACTSC 376 |
Hearing Dates: | 7 January 2022 |
DecisionDate: | 11 January 2022 |
Before: | Refshauge AJ |
Decision: | 1. Mark William Burge be convicted of aggravated burglary and be sentenced to 2 years imprisonment to commence on 22 May 2021 and end on 21 May 2023. 2. Mark William Burge be convicted of dangerous driving as a repeat offender and be sentenced to 9 months imprisonment to commence on 22 April 2023 and end on 21 January 2024. 3. Mark William Burge be convicted of damaging Commonwealth property and, without passing sentence, be released on a recognisance with a surety of $200 to be of good behaviour for 12 months from today, 11 January 2022. 4. Mark William Burge be convicted of common assault and be sentenced to 1 months imprisonment to commence on 22 January 2024 and end on 21 February 2024. 5. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Mark William Burge 2 years from today (commencing on 11 January 2022 and ending on 10 January 2024) in respect of the primary offence of aggravated burglary of which he has been convicted and for which he has been sentenced to 2 years imprisonment. 6. That Order be extended to the offences of dangerous driving as a repeat offender and common assault of which Mark William Burge has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. 7. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 8. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 11 January 2022, until 21 February 2024. 9. Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Mark William Burge be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 10 January 2024, until the end of the total sentence, 21 February 2024, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 10. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. Mark William Burge undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team or the Court and obey all reasonable directions of any member of that Team or the Court about where he resides, with whom he associates and his attendance from time to time; and c. Mark William Burge comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 11. Mark William Burge be directed to appear by electronic means in Court on Friday 21 January 2022 at 11:30 am. 12. Mark William Burge be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Aggravated dangerous driving – Repeat offender – Damaging Commonwealth property – Common assault – Delay in sentencing – Rehabilitation – Mental health – Drug use – Drug and Alcohol Treatment Order application – Application successful |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33, 46J, 46K, 80W, 80Y Crimes Act 1900 (ACT) s 26 Crimes Act 1914 (Cth) s 16A Criminal Code 1995 (Cth) s 132.8A Criminal Code 2002 (ACT) s 312 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 7 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Douglas v The Queen (1995) 56 FCR 465 Hili v The Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 O'Brien v The Queen [2015] ACTCA 47 R v Antonovic (No 3) [2021] ACTSC 338 R v Coleman (No 3) [2021] ACTSC 357 R v Crawford (No 1) [2020] ACTSC 245 R v Elphick [2021] ACTSC 9 R v Gabriel [2004] ACTSC 30 R v Hancock [2021] ACTSC 52 R v McHughes (No 3) [2021] ACTSC 344 R v Pearson [2020] ACTSC 375 R v Watson [2020] ACTSC 21 R v Seymour [2021] ACTSC 152 R v Pelecky (No 2) [2020] ACTSC 370 Saga v Reid and Collett [2010] ACTSC 59 |
Parties: | The Queen (Crown) Mark William Burge (Offender) |
Representation: | Counsel N Deakes (7 January 2022), C Muthurajah (11 January 2022) (Crown) E Chen (7 January 2022), T Lee (11 January 2022) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 257 of 2021 SCC 258 of 2021 |
REFSHAUGE AJ:
Introduction
It is logical that, when a particular cause produces a result, the later occurrence of this cause is likely, if not bound, to mean that the same result will follow. In essence, this is an important basis for the Drug and Alcohol Sentencing List (List) of the Supreme Court of the ACT, which administers the Drug and Alcohol Treatment Order (Treatment Order), which can be made by the Supreme Court under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) for certain offenders. The history and background of the List is set out in R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[8]. See also R v Crawford(No 4) [2021] ACTSC 209 at [1]–[3] and R v Coleman (No 3) [2021] ACTSC 357 at [1]–[2].
While human behaviour is complex and conduct can rarely be conclusively attributed to one or even a limited number of causes, the principle remains relevant. Thus, if the misuse of drugs or alcohol substantially contributes to the user committing crime, it is at least highly likely that addressing that misuse will reduce the incidence of crime. This hypothesis has been shown to be valid by the numerous research reports on the success of drug courts, of which this List is a version.
It is also rational to try and curb criminal behaviour before it becomes more serious or more frequent.
Thus, Mark William Burge now appears for the first time as an accused person in the Supreme Court, charged with serious offences, which he says were substantially contributed to by his use of methamphetamine. It appears likely, therefore, that, if the evidence reaches the requisite standard, addressing his drug use may assist, or at least impede his trajectory of committing more serious crime.
Mr Burge has pleaded guilty to offences of aggravated burglary, aggravated dangerous driving as a repeat offender, damaging Commonwealth property and common assault.
On sentencing, the Crown tendered without objection the Crown Tender Bundle. It contained the relevant committal and transfer documents, the Agreed Statement of Facts, Mr Burge's Criminal History and some photographs of the damage the subject of the offence of damaging Commonwealth property.
The Tender Bundle also contained two Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act. These were the Drug and Alcohol Treatment Assessments dated 17 December 2021 of ACT Corrective Services, the Drug and Alcohol Suitability Assessment dated 5 December 2021 of the Alcohol and Drug Service and the Drug and Alcohol Treatment Suitability Assessment dated 15 December 2021 of Alcohol and Drug Services.
Also tendered without objection and incorporated into the Tender Bundle was a USB stick containing some footage from a body worn camera of one of the police officers at the scene and a dash cam of a police vehicle which pursued Mr Burge. These items of footage were played to the Court.
Mr E Chen, counsel for Mr Burge, tendered, also without objection, a letter from ACT Corrective Services Justice Housing Program. There was no challenge to the content of any of the tendered material.
Written submissions were received from Mr N Deakes, counsel for the Crown. Both Crown counsel and Mr Chen addressed helpful, thoughtful and targeted oral submissions and engaged in discussion with the Court.
On the basis of this material, the Court makes the following findings.
The facts
In the afternoon of 11 December 2019, Mr Burge and a co-offender went to residential premises in Waramanga, ACT, where they entered the residence. They drove there in a white Nissan Qashqai SUV, which they parked in the driveway and proceeded to take items from the house and place them in the back of the vehicle.
The premises had been the residence of a deceased gentleman and they had no permission to be on the premises, much less take any items out of the house.
These were the facts that founded the charge of aggravated burglary, the circumstance of aggravation being that Mr Burge was in company.
A neighbour, concerned about the activity, contacted the son of the late resident, who contacted police, who in turn went to the premises. They saw the white Nissan motor vehicle in the driveway and attempted to contact anyone in the house, but without success. They then parked the marked police vehicle in which they had arrived in front of the white Nissan in an attempt to prevent it from leaving the premises.
Shortly after police had tried to gain access to the house, Mr Burge left the back of the premises and got into the white Nissan, despite one of the police officers, who had recognised him from previous dealings, attempting to stop him. The police officer, Senior Constable Simoes, gave Mr Burge multiple directions to stop and, when he did not comply, deployed her conducted electric weapon, commonly called a taser (see R v Hancock [2021] ACTSC 52 at [17]). It appears from the body camera footage that it did not deploy effectively and only one of the two prongs hit Mr Burge, hitting him in the shoulder, so not completing the electric circuit.
Mr Burge proceeded to get into the driver's side of the white Nissan. As he opened the door to do so, he struck the inside of the upper left leg of Senior Constable Simoes, causing her pain. There is no evidence to suggest that this was intentional, but rather an accident. Further, there was no evidence to suggest that there was any ongoing injury or, even, how long the pain lasted. It seems likely that it moderated reasonably quickly.
These were the facts, together with the threat to Senior Constable Simoes referred to below (at [21]), on which the charge of common assault was based.
Mr Burge then drove the white Nissan in the direction of the police vehicle, hitting it in the front and causing some damage. The footage showed the manoeuvre, but from the back of the vehicle and so it did not show the particular damage. Photographs taken by Sergeant Watson were in evidence. They do show the damage. It appears that there were some scratches on the front and passenger side of the front wheel guard and damage to what appears to have been a push bumper at the front of the police vehicle. It did not appear to be substantial damage and there was, as, regrettably, is frequently the case, no evidence of the actual value of the damage. It did not appear to interfere with the ordinary operation of the vehicle.
These were the circumstances that found the charge of damaging Commonwealth property. The police car belonged to the Australian Federal Police, a Commonwealth agency, which provides police services to the ACT under a contract of employment, and it was, therefore, Commonwealth property.
Mr Burge then reversed the vehicle in the direction of Senior Constable Simoes, who was forced to move out of the way and into a nearby bush. This was incorporated into the charge of assault, because assault includes making a threat by words or actions that would lead a person to apprehend immediate violence. See R v Gabriel [2004] ACTSC 30 at [92]–[93] and R v Pearson [2020] ACTSC 375 at [29].
Mr Burge then drove the white Nissan around the police vehicle, onto the road and sped away. Police followed him and activated the emergency lights and sirens, but Mr Burge failed to stop.
From the dashcam footage of the pursuing police vehicle that was provided to the Court, it was clear that Mr Burge breached a number of road rules: he was driving in excess of the speed limit and, at one stage, he drove on the incorrect side of the road. It was accepted that the driving was for a relatively short period of time.
Initially, no pedestrian or vehicle traffic could be seen on the road, though some vehicles did approach the white Nissan just as it turned off into another street. These were the facts that led to the charge of aggravated dangerous driving.
As Mr Burge had previously been convicted of an offence against s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) [redacted for legal reasons], he was, as charged, a repeat offender.
Police interviewed the neighbour, who alerted the late resident's son of the burglary and also the co-offender, whom they arrested at the house. He said that Mr Burge had contacted him and asked him to help him remove the property from the residence.
When, later, police seized the white Nissan, they found property in it that was identified as having been stolen from the house.
The proceedings
Mr Burge was arrested on 26 April 2020 and refused police bail. He appeared the next day in the ACT Magistrates Court, where the charges of aggravated burglary, damaging Commonwealth property and aggravated dangerous driving were preferred. He was remanded in custody.
Mr Burge was also referred to the Sentence Administration Board, as he had breached a Parole Order, though it does not appear that he was on parole at the time of this offending conduct. The Parole Order was cancelled and he was required to serve 91 days in custody.
The proceedings were adjourned and, on 28 May 2020, he entered pleas of not guilty. The prosecution Brief of Evidence was then prepared and, on 29 July 2020, the proceedings were listed for a two day hearing on 21 and 22 September 2020. On 16 September 2020, however, that hearing date was vacated.
On 15 October 2020, a new hearing date was set of 21, 22 and 23 April 2021. Mr Burge, however, appears to have been granted bail on 26 October 2020, but he then did not attend the hearing date and a warrant was issued for his arrest.
He was arrested on 14 July 2021 and remanded in custody. On 5 October 2021, Mr Burge was sentenced to 14 days imprisonment, to commence on 14 July 2021. He was then sentenced on 26 October 2021 to prison for failing to appear in accordance with his bail undertaking, that sentence to run from 20 July 2021 to 31 August 2021. This period, from 14 July 2021 to 31 August 2021, amounted to a further 49 days.
On 26 October 2021, the prosecution preferred the charge of common assault and Mr Burge pleaded guilty to it and then also to the other offences. He was committed to this Court for sentence on the indictable charges and the summary charge was transferred.
It was intended that he would be referred into the List with a view to considering whether a Treatment Order should be made. An assessment of his eligibility for a Suitability Assessment was sought and requested.
When Mr Burge appeared in this Court on 12 November 2021, Suitability Assessments were directed to be prepared and a sentencing date was set.
Mr Burge has spent 229 days in custody solely in relation to these offences, not including those days in custody in relation to other matters of sentence.
Mr Burge's co-offender has not been sentenced yet.
The offences
Two fundamental elements require consideration when sentencing an offender: the offence and the offender. These are required to be considered for Territory offences under s 33(1) of the Sentencing Act and for Commonwealth offences by s 16A(2) of the Crimes Act 1914 (Cth).
The first, relating to the offence, is set out in s 33(1)(a) of the Sentencing Act and s 16A(2)(a) of the Crimes Act, namely the nature and circumstances of the offences.
In order to address these matters, there are certain considerations established by the courts that must be considered. The first is the maximum penalty for the offence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]–[31]. The second is the way in which sentencing courts and courts of appeal have identified the relevant factors that will aggravate or mitigate the offences actually committed, given that most offences can be committed in a wide variety of ways and circumstances.
These latter issues are part of what is meant by “current sentencing practice” in s 33(1)(za) of the Sentencing Act and appear to be encompassed by the general requirement to take into account “all the circumstances of the offence” in s 16A(1) of the Crimes Act.
These issues will now be considered.
Aggravated burglary is an offence contrary to s 312(a) of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 20 years imprisonment or a fine of $320,000 or both. By this penalty, it is to be regarded as a very serious offence.
While the circumstance of aggravation, here the presence of another offender, renders it an aggravated offence, it remains an offence of burglary and the features relevant to those offences may be regarded as relevant, because, for the offence of aggravated burglary, there may be other aggravating features. For example, given the basis on which an aggravated burglary is regarded as more serious (see R v Watson [2020] ACTSC 21 at [20]), more than two co‑offenders may be regarded as further aggravation, as would the number and type of weapons used, though none were used in this case and there was only one co-offender.
As to the aggravating and mitigating features of a burglary, these have been set out in detail in R v McHughes (No 3) [2021] ACTSC 344 at [28]. It is not necessary to repeat them, but reference will be made to the relevant ones.
The property which Mr Burge entered was a residential property, which makes the offence a more serious one, though it was not currently occupied, which moderates the full extent of the seriousness, especially as that would mean, in particular, that there was no likelihood of the burglars disturbing or confronting the occupant.
There was no evidence of any damage to the property on entry or while Mr Burge was in it and, while no property was actually stolen, boxes were placed in the station wagon. The evidence, however, gave no indication of what was in those boxes or their value, though it can reasonably be inferred that they had some value as it is unlikely that Mr Burge and his co-offender were acting as garbagemen.
There is no direct evidence of the reason for the offences, but the evidence allows for the inference that it was to purchase drugs. There was obviously some planning, given that it seems likely that the empty house was targeted, given all the evidence (for example, the co‑offender's statement that Mr Burge asked him “to help him remove items from the residence”), and the recruitment of the co-offender himself.
Further, Mr Burge's role was more significant than that of the co-offender, as Mr Burge was the motivating party and the organiser.
These make it a more serious version of the offence.
Damaging Commonwealth property is an offence against s 132.8A of the Criminal Code 1995 (Cth), which prescribes a maximum penalty of 10 years imprisonment.
Principal considerations are the circumstances of the damage and the cost of repair, diminution of value or the like. The circumstances seem a little more serious here, as it appears that Mr Burge deliberately rammed the police vehicle, given that he was able to drive around it and leave the premises, which he did shortly after. On the other hand, while there was no evidence of the value of the damage, the photos do not indicate particularly serious damage. Certainly, for example, there was no evidence that it rendered the police car undriveable or unserviceable. It was not, therefore, a particularly serious version of the offence.
Aggravated dangerous driving is an offence against s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and, when the offender is a repeat offender, as is Mr Burge, that Act provides for a maximum penalty of five years imprisonment or a fine of $80,000 or both.
The gravamen of the offence is the risk to others in or near the place where the driving occurs. Mr Burge had no passenger, but this meant that he left the co-offender that he had enticed into committing the burglary with him without any reasonable means of avoiding police, as Mr Burge was himself attempting to do. That probably, however, does not increase the seriousness of the offence, though it allows a less benign view of Mr Burge.
The evidence shows that, apart from those in the driveway, the only people at risk were the pursuing police. There were other users in the distance, but Mr Burge had turned off before they came close to his vehicle. The period of driving and distance travelled were, it was accepted, short. The area was built up, which does make the offence somewhat more serious (see R v Seymour [2021] ACTSC 152 at [41]).
While speed is an element of the offence, it has to be more than 30% more than the posted speed limit. There was no evidence of precisely how fast he was driving, though he was speeding. Similarly, the failure of Mr Burge to stop in compliance with the police direction constituted by the emergency siren and lights is an element of the offence. That he was speeding from police in a pursuit when they wished to arrest him was an aggravating feature (R v Pelecky (No 2) [2020] ACTSC 370 at [46]).
This was a serious offence, but there were not many aggravating factors other than the elements of the offence.
Common assault is an offence contrary to s 26 of the Crimes Act 1900 (ACT) and is punishable by a maximum penalty of two years imprisonment. In this case, the hitting of the leg of Senior Constable Simoes with the car door and the reversing of the car at her constituted the assault.
The hitting of the leg of Constable Simoes caused her pain and the driving at her caused her to take evasive action, which landed her in a nearby bush. She did not make a Victim Impact Statement, so the Court has no evidence of any special harm she suffered or experienced. Nevertheless, the Court can accept that it would have been a frightening experience to have been driven at by a motor vehicle and there was obviously pain to her leg, though it is likely to have been transitory.
There was, however, no evidence of actual physical harm, and so it was not a particularly serious version of the offence. It was, perhaps, somewhat more serious since Senior Constable Simoes incurred the assault while she was carrying out her duties as a police officer.
Subjective circumstances
Mr Burge was born 34 years ago, the eldest of seven siblings of his parents. His parents separated when he was two years old and his mother subsequently re‑partnered. He told the author of one Suitability Assessment that the household, however, was characterized by family violence, alcohol abuse, use of illicit drugs and neglect.
Mr Burge did say to the author of the other Suitability Assessment that there was always food available. He cannot recall any violence at home and he told the author of the other Suitability Assessment that his childhood was “uneventful”, though he did say that his mother had a drinking problem.
The Court is not able to resolve this inconsistency, even on the balance of probabilities. Thus, childhood disadvantage, as usually appears in criminal proceedings, is not a matter that, in this case, will reduce Mr Burge's moral culpability.
Nevertheless, there were matters of concern. He was a difficult child and, because of his uncontrollable behaviour, was placed in foster care when he was 13 years old. This was a difficult time for him, however, which needs to be taken into account. He was moved between numerous homes as he would run away. He explained that “no one wanted me, they all knew I was bad.”
He was then placed in boarding houses where he was “locked in his room” for many hours on most days, resulting in him showing some violence by, for example, damaging walls and ceilings and becoming increasingly angry and eventually violent. He managed to gain independent accommodation when he was 16 years old, through ACT Housing.
Mr Burge left High School when he was aged 13 [redacted for legal reasons]. He later completed some programs in the community, including a Certificate II in Horticulture and his White Card. He also completed a course at the Canberra Institute of Technology which included training in engine maintenance, welding, tool maintenance and a forklift licence.
He managed to resume contact with his mother in his 20s, but she died in 2015 after a long illness. He had infrequent contact with his father, but it appears he had made some reconnection.
When he left school he gained sporadic employment in the construction industry and in factories, but none were long-term and usually ended when he entered custody. In 2016, however, he gained employment on a remote cattle station in Queensland where he worked for three years as a general hand. Though the duties were physically taxing, he was completely abstinent from alcohol and illicit drugs during this time. Unfortunately, his father became terminally ill and he had to return to Canberra where he resumed use of alcohol and illicit drugs as a result of the grief from his father's death.
Mr Burge has had a number of relationships and has three children from three different partners. The eldest was born when Mr Burge was 17 years old. The relationship was described as “tumultuous” and ended shortly thereafter.
The contact with his son is not clear. To one author of the Suitability Assessments, he said that he has “not established a relationship with his son due to his substance use, and offending behaviour”, but to the other he said that “He has ongoing contact with his son”, who resides with the son's maternal grandmother in Canberra. His youngest child is living with the child’s mother in Queensland.
Originally, it was proposed that he live with his eldest son and the son's maternal grandmother if released into the community, but ACT Corrective Services has assessed the residence as unsuitable.
While Mr Burge has no major mental health problems, he has had some counselling while in the Alexander Maconochie Centre and describes a history of anxiety and depression. He is not prescribed medication for these conditions.
As a young boy, he suffered from Perthes' Disease, which required challenging treatment for the better part of a year and has left him with lifelong chronic nerve pain and instability with his pelvis. It greatly limited what he could physically do as a child. He was prescribed pain killers for many years, but prefers now to manage his pain through strength training.
Mr Burge has a long history of abuse of various substances. He first started drinking alcohol when he was 13 years old, unsurprisingly in the family situation. Initially, he would consume alcohol regularly each week until he was placed in custody. More recently, his consumption would be of a 10-pack of Wild Turkey, 8% alcohol by volume, each day until his most recent remand in custody.
He also started smoking tobacco at the early age of 14 and currently smokes 10 or more cigarettes each day.
He first used cannabis when he 13 years old, but soon began to smoke it daily, using about 1 gram a day. He uses it now mainly to manage the effect of methamphetamine withdrawal and to help him sleep at night.
He began consuming methamphetamine when he was 17 years old. He used it initially recreationally about once a fortnight, but increased his use around age 21 and it then became his drug of choice.
He has used other drugs, but only experimentally and does not continue their use. This includes cocaine, heroin, MDMA, ecstasy and GHB. He has, however, used non-prescription medication, especially benzodiazepines, probably from before he was 20 years old.
Mr Burge attended Odyssey House, New South Wales, when he was 20 years old. He stayed for three months only, however, as he was not ready to commit to managing his drug dependence. He was also a participant in a methadone program, but only briefly. He also attended some group counselling but decided that he “didn't have the problems they did” and left.
Mr Burge has a very significant criminal history, [redacted for legal reasons].
While the majority of the balance were traffic offences, mainly regulatory offences, there were nevertheless some more serious offences, such as an offence of dangerous driving. [Redacted for legal reasons].
He has committed 58 offences as an adult. The trend, however, has been somewhat different. Eleven of the offences were offences of violence, including three offences of assault occasioning actual bodily harm, one of assaulting police and two of breaching domestic violence orders. There were still 12 offences of dishonesty. The remaining offences were traffic offences.
He was first committed to an institution in July 2001. On 8 August 2006, he was first sentenced to gaol. The term of imprisonment was suspended for two years, but he breached the required Good Behaviour Order then made, but it is not clear what, if any, action was taken. In 2008, he was sentenced to a period of imprisonment, not suspended, with a nine-month non-parole period. Since then, he has been sentenced to imprisonment on a number of occasions.
Despite the value of his time in the remote cattle station in Queensland, it is noted that in 2018 and early 2019 he was sentenced for three offences, including an offence of aggravated contravention of a domestic violence order.
The Suitability Assessments of ACT Corrective Services reported that his response to supervision on bail under Good Behaviour Orders and on Parole has been considered poor, with breach action recorded on 10 occasions. Each Parole Order has been cancelled or subject to breach action. He has, on occasion, breached Parole Orders by re-offending.
Mr Burge agreed with the Statement of Facts and acknowledged the effect that his offending would have had on the community, commenting that, “It's lucky I didn't seriously hurt someone. So much could have gone seriously wrong, it scares me.” He is reported to have spoken “with great remorse about his current charges” and to have greatly regretted the events. He said that he was smoking 17 points of methamphetamine every two days at the time of the commission of the offences.
He is reported to have been polite and cooperative with the preparation of the Suitability Assessments. He presented as “enthusiastic, motivated and engaged.”
He has been supported by his partner and his stepmother, who cares for his eldest son. He has been accepted into the ACT Corrective Services Justice Housing Program for accommodation when he is released from custody.
The Case Plan prepared by Alcohol and Drug Services makes provision for intensive counselling and group courses, as well as addressing his mental health issues.
Current sentencing practice
While current sentencing practice is a mandated consideration for Territory offences (s 33(1)(za) of the Sentencing Act), it is also important for Commonwealth offences because of the common law value in sentencing of consistency.
While some of this has been discussed above in the consideration of the nature and circumstances of the offences, this now addresses the actual sentences to be imposed. These are to be judged by the yardstick of how courts have sentenced other offenders, particularly when they have committed not merely the same offence but in similar circumstances, and where there are similar personal circumstances and characteristics of the offender.
Having noted that, it is also to be accepted that many offences are able to be committed in a wide variety of ways that make comparable cases difficult to identify and not always very helpful.
It is, of course, the application of relevant sentencing principles that is important: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 535–6; [48]–[49]. The sentences shown to have been imposed in comparable cases or by statistics gathered in the ACT Sentencing Database, for example, will be relevant to the exercise, but are to be approached with care so as to meet the necessary establishment of a yardstick by which sentences can be compared.
Nevertheless, such sentences can be of assistance. Perhaps because the offences have particular characteristics, neither counsel provided the Court with any comparable sentences.
Reference was made to what Murrell CJ said in R v Elphick [2021] ACTSC 9 at [154]:
The limitations of sentencing statistics are well-known. However, for what they are worth, sentencing statistics show that, in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment:
(a) the offence of aggravated burglary usually results in a sentence of between 18 months’ and three years and six months’ imprisonment
Damaging property is an offence which is difficult to assess in this way as it can be carried out in such a wide variety of circumstances, both in the way it is committed, but also the circumstances of its commission and the value of the damage caused. Since the evidence does not show the value of the damage and since the statistics do not show the value of the damage for offences of the sentences recorded, comparing these offences is quite difficult.
As to the offence of dangerous driving, the data available from the ACT Sentencing Database records that nearly all the offences in the Supreme Court were dealt with by imprisonment, with a few sentences wholly or partly suspended. All periods of imprisonment were for 12 months or less.
For the offence of common assault, according to the data available in the ACT Sentencing Database, those that were dealt with in the Supreme Court resulted in a sentence of imprisonment from seven days to 43 months. The majority were in the range of between seven days and six months, but some were a sentence of between seven months and 12 months.
Consideration of the sentencing remarks that were available did not show any particular similarity with Mr Burge’s offence. Of course, the majority of these offences are dealt with in the Magistrates Court.
Consideration
When determining the difficult question of the sentence to be imposed, the task is made a little easier if the purpose for which the sentence is to be imposed is clear. The courts of this Territory are fortunate that the purposes of punishment and sentencing have been codified in s 7 of the Sentencing Act. These are generally consistent with the common law purposes and they can be helpful in the consideration of the Commonwealth offences as a result, though the Territory emphasises the effect on victims in particular, more so than the common law did.
The offences here are not the most serious, but the offences of aggravated burglary and aggravated dangerous driving do require a response of some seriousness and significance. They are offences that do, to a certain extent, affect and provide difficulties for the community and, therefore, there is a need for punishment to be an important element reflected in the sentence to be imposed. It is also necessary to show that such a sentence will deter others from committing the same offences.
The history of Mr Burge's offending and the commission of like offences means that personal deterrence is a highly relevant factor, as Mr Burge must be shown that such behaviour is unacceptable in our community. Nevertheless, Mr Burge's desire for rehabilitation is also relevant.
Of course, he has made some ineffectual attempts already, but that does not necessarily deny him further opportunities to attempt to rehabilitate, as, if achieved, rehabilitation will be the most durable and successful protection for the community.
Given that Mr Burge is of an age when the experience of the Court suggests that those dependent on illicit drugs do contemplate the need for management of their dependency and the need to address the problems that that causes, it may be that Mr Burge is able to be abstinent. It is notable that Mr Burge was also able to be abstinent for some years, which suggests that there is some opportunity for him to attempt significant rehabilitation.
Mr Burge's wish to attempt further rehabilitation and to address the difficulties that he has experienced in using illicit drugs is perhaps an opportunity for him to take rehabilitation into account. See Saga v Reid and Collett [2010] ACTSC 59 at [89].
Of course, the harm done to the victims must be recognised. Apart from Senior Constable Simoes and her assault in the line of duty, there were no other personal victims. Though the occupant of the premises which Mr Burge had breached in the burglary was deceased, the son of that occupant had some responsibility for the property and no doubt its contents, but it was not a property in which he was currently resident. Similarly, there was no identified person who was actually endangered by the aggravated dangerous driving. Nevertheless, the community is harmed by such behaviour.
As to the damage to the police vehicle, each of the members of the community will bear the cost of repair. These matters are to be reflected in the sentence.
While Mr Burge did plead guilty, it was at a relatively late stage. It was in the Magistrates Court and so has a degree of utilitarian value, but it was also after a hearing had been listed and only on the day of the hearing. Nevertheless, the plea of not guilty was confirmed more than two months earlier. Thus, the discount available must be moderate.
This, of course, does not apply to the charge of assault, which was preferred only on the day on which the pleas of guilty were entered to the other charges and to which Mr Burge then pleaded guilty immediately, because it was at the earliest opportunity and warrants the maximum discount available to him. Further, however, the case against Mr Burge was a strong one which moderates the discount available.
Mr Burge has expressed remorse and the Court is satisfied that his expression is genuine. That will be taken into account. It is also accepted that Mr Burge was under the influence of illicit drugs at the time of his offending and while that is, it is accepted, not an excuse, the early age of his introduction to drug use, before he could make an informed choice, does mitigate his culpability: Douglas v The Queen (1995) 56 FCR 465 at 470.
It is to be noted that the proceedings have been greatly delayed. The offences took place over two years ago. Much of this delay is due to actions of Mr Burge. It is not entirely clear what caused the postponement of the first hearing set for 21 and 22 September 2020, though on 9 July 2020 it was noted that some material from the prosecution Brief of Evidence was still outstanding.
Nevertheless, Mr Burge's absconding and failing to answer his bail meant that the hearing was then abandoned. A fresh date was set for 10 to 12 November 2021, but on 26 October 2021 he pleaded guilty and was committed to this Court accordingly.
Thus, the delays were partly Mr Burge's fault. He did not take any steps to rehabilitate in the meantime and there is no reason to take the delay into account in determining the penalty. The delay in these circumstances does not justify any mitigation of the sentence to be imposed.
Mr Burge is, of course, responsible for his conduct. He is primarily responsible for the aggravated burglary and solely for the other offences. It is accepted that he has recognised and assumed that responsibility.
As well as all these matters, the nature and circumstances of the offences as they have already been described will be taken into account, as well as the personal circumstances of Mr Burge as they have also been described. The harm done to the victim will also be taken into account, as that can be assessed and the effect of the offences on the community must be denounced.
Taking all these factors into account, these offences are nowhere near the worst possible versions of those offences and, if anything, somewhere at the lower end of the offending of such offences. Nevertheless, having considered all the available alternatives, nothing but a sentence of imprisonment is appropriate for the aggravated burglary, the aggravated dangerous driving and the common assault. A non-custodial sentence is appropriate in relation to the offence of damage Commonwealth property.
Mr Burge has, of course, committed four offences. The principles for dealing with them set out in O'Brien v The Queen [2015] ACTCA 47 at [26] and R v Hancock at [108]–[110] are accepted, namely:
1. Each offence must be accorded a sentence that is just and appropriate first. That has been done.
2. In addition, the Court must carefully consider whether there are common elements between the offences or whether they are part of the same course of conduct to justify wholly or partly concurrent sentences. In this case, that has been done. The offences are part of the same course of conduct, but this will provide limited justification for concurrency in the circumstances of the case.
3. The length of the total sentence must then be reviewed to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality, but no more than that, and that the total sentence is not excessive and will leave open the realistic prospect of reform and hope for Mr Burge to achieve his goals when he is released into the community. That has been done.
4. The Court must also ensure that the sentence does not leave a perception that the offender can commit multiple offences with impunity. That has also been considered.
Sentence
[His Honour then spoke directly to the offender]
Mr Burge, please stand.
1. You are convicted of aggravated burglary on 11 December 2019 and sentenced to two years imprisonment to commence on 22 May 2021 and end on 21 May 2023.
2. You are convicted of dangerous driving as a repeat offender and sentenced to nine months imprisonment to commence on 22 April 2023 and end on 21 January 2024.
3. You are convicted of damaging Commonwealth property and, without passing sentence, released on a recognisance with a surety of $200 to be of good behaviour for 12 months from today, 11 January 2022.
4. You are convicted of common assault on 11 December 2021 and sentenced to one month imprisonment to commence on 22 January 2024 and end on 21 February 2024.
You may be seated.
Drug and Alcohol Treatment Order application
It now needs to be decided how that sentence is to be served. In particular, Mr Burge has sought that a Treatment Order be made. Because of the restraints set out in s 12A(5) of the Sentencing Act, it is desirable that the Court determines a sentence of imprisonment before and separately from the desirability of the making of a Treatment Order. The Court has proceeded accordingly.
The Court, therefore, now turns to the question of whether a Treatment Order should be made.
There are two principal questions to determine in this consideration: is Mr Burge eligible for a Treatment Order to be made and, if so, is it appropriate that such an Order be made.
Eligibility for a Treatment Order is primarily provided for in s 12A of the Sentencing Act and this question will now be considered.
Mr Burge has now been sentenced to imprisonment on his plea of guilty, a precondition to such an Order. The term of imprisonment for the primary offence of aggravated burglary is two years, so that is more than the minimum period for him to be eligible, namely 12 months. The total sentence is two years and nine months imprisonment for all the offences, which is less than the four years imprisonment which is the maximum period of any total sentence to which an eligible offender may be sentenced.
Mr Burge is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act, the offence for which he has been sentenced and eligible offences within the meaning of that section.
The unchallenged Suitability Assessments show Mr Burge has been a long-time user of illicit drugs, especially methamphetamine. The Suitability Assessments of the Alcohol and Drug Service assess Mr Burge as presenting with the likelihood of severe substance disorder (dependence) at the time of the offending. That is supported by his history and, indeed, to some extent, his prior criminal offences. On the basis of this evidence, the Court is satisfied on the balance of probabilities that Mr Burge is dependent on a controlled drug, namely methamphetamine.
Again, the statements he has made, as recorded by the author of that Assessment, and the nature of the offences satisfy the Court, on the balance of probabilities, that Mr Burge's dependence substantially contributed to the commission of those offences.
Mr Burge was born in Canberra and, apart from approximately three years in Queensland, has lived here all his life. He has, as noted above (at [88]), been accepted into the Justice Housing Program. While suitability for this residence was subject to a Treatment Order, he is able to reside with his partner and her mother. Accordingly, the Court is satisfied that he will live in the ACT for the term of the sentence that has been imposed.
Mr Burge has signed a consent form to the making of a Treatment Order. This is unchallenged evidence that he has given informed consent to the making of the Treatment Order, following a clear explanation of such an Order and which contains sufficient information to enable him to make a balanced judgment about whether or not to give that consent. The evidence also shows that he has had the opportunity to ask any questions about the making of an Order, that those questions have been answered and that he understands those answers.
Accordingly, Mr Burge is eligible for a Treatment Order to be made. The Court now turns to the question of whether it is appropriate for a Treatment Order to be made.
The carefully and expertly prepared Suitability Assessments, which have comprehensively and very helpfully assessed Mr Burge's suitability, have been read by the Court. Regard will also be given to the sensible and thorough submissions made by both counsel.
The Suitability Assessment of the Alcohol and Drug Service has assessed Mr Burge as suitable for a Treatment Order. The Suitability Assessment of ACT Corrective Services has assessed him as not suitable because of his serious criminal history, substantial non-compliance with previous orders and his lack of suitable accommodation.
The latter, however, can be dealt with promptly. The recommendation was made before Mr Burge was eligible for admission to the Justice Housing program. It is not necessary to address that further.
His non-compliance with previous court orders is, however, of concern. It has been substantial and mostly continuous. That has been summarised earlier (at [85]).
Mr Chen, counsel for Mr Burge, relied on a number of factors to suggest that the Court should, as it may, make a Treatment Order notwithstanding his assessed unsuitability and the worrying non‑compliance with community-based orders, which suggests that he will not succeed with a Treatment Order.
Mr Burge has, he submitted, not engaged in drug and alcohol rehabilitation in any significant way for over 10 years. He has further expressed that he recognises the futility of his present drug and crime filled lifestyle. As noted, he has reached an age of maturity where many persons dependent on drugs do realise that they are wasting their life, seek to end such behaviour and to provide an opportunity to live a full and helpful life with family and work.
In addition, he has been able to live a drug free lifestyle for three years or so while he was in Queensland, though it appears that he was not entirely crime free at that stage. That appears to relate, however, to a relationship that had ceased and his current relationship does not appear to place him at risk of repeating that behaviour.
While the Court is not satisfied that the Bugmy principles have been engaged (see Bugmy v The Queen [2013] HCA 37; 249 CLR 571), Mr Burge had a challenging childhood and that he commenced use of illicit drugs at an early time, both of which require intensive therapeutic intervention to address.
His attitude is currently positive, though this is, of course, a statement of behaviour that needs to be translated into action. His compliance with the authors of the Suitability Assessments is a good initial sign of his willingness to comply and engage.
The Court is not aware of any other indicator of unsuitability set out in table 46K of the Sentencing Act that should be addressed.
Accordingly, in all the circumstances, it is appropriate to make a Treatment Order for Mr Burge.
The Alcohol and Drug Service has prepared a comprehensive Case Plan for Mr Burge which is appropriate and adequate to address the issues which Mr Burge must face if he is subject to a Treatment Order.
Mr Burge’s sentence commenced on 22 May 2021 and, thus, must be suspended today. Despite that, the Court is not prevented from making a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111].
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender]
Mr Burge, please stand.
The Court makes the following further orders:
5. A Drug and Alcohol Treatment Order be made for you under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for two years from today, 11 January 2022 to 10 January 2024 in respect of the primary offence of aggravated robbery of which you have been convicted and for which you have been sentenced to two years imprisonment.
6. That Order be extended to the offences of aggravated dangerous driving and common assault, of which you have been convicted and for which you have been sentenced and which are associated offences of the primary offence.
7. It is noted that the convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
8. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 from today, 11 January 2022, until 21 February 2024.
9. You are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, namely 10 January 2024, until the end of the total sentence, 21 February 2024 with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking and obey all reasonable directions of the person supervising you including urinalysis, counselling and treatment.
10. For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a) The core conditions of the order are set out in s 80Y of the Crimes (Sentencing) Act 2005 are hereby imposed;
(b) That you undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team or the Court and obey all reasonable directions of any member of that Team or the Court about where you reside and with whom you associate, and your attendance from time to time; and
(c) That you comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(2) You are directed to appear in Court on Friday, 21 January 2022 at 11:30 am.
(3) You are directed to attend the Court Registry before you leave the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 for the period that this Order is in force.
Mr Burge, the explanation for this sentence is that these are serious offences that justify a serious sentence. That sentence is a long one, however, part of that is the sentence that you have already served by imprisonment, but serving the balance of that period of imprisonment in custody is no longer required.
Instead, you are now required to serve that sentence subject to a Treatment Order. That means that you have got to take steps to ensure that you will address your drug use and, in particular, address the problems that you have had from that so that you comply with the obligation to address abstinence and the risk of relapsing.
It will be tough for you and it will not be easy for you to achieve this, but you will need to address that. In particular, you will need to work well with the people who will support you in the Treatment Team. There will be counselling that you will need to do. There will be regular urinalysis. There will be case management for you and you will need to address that and comply with that. It will not be easy and you will have to work hard at that. What is important is that you address that and do not abscond – fail to attend urinalysis, fail to attend counselling and so on.
You will also be required to report to the Court every week for a while although, this time, the first time will be 21 January. It is important that you take the opportunity to report to the Court and address what needs to be done then.
When you appear in Court, there will be two things that I deal with then: one is that if you are going well then I will congratulate you for doing that. The other is that if you are not going well, we need to address that, what the difficulties are and how you will resolve them.
Honesty is really important if you are going to address this. You will need to be honest in the counselling that you will reach, but you also need to be honest to yourself. It is very easy to pretend to yourself that you have not been so bad, or you are not really being troubled about things that are happening. The reality, though, is that you need to be honest about that. That is important.
Hopefully you will make the most of this. It will work well with you and you can then work through a life that will be drug and crime free and then you can start building the opportunity to work with the family, getting a job and working in the community.
I hope that you will achieve that. I hope that you will do the best you can to make that work and therefore I wish you good luck in doing that.
When you leave the Court now, you will have to sign in the Registry the Order that has been made and then you will have to make sure you make contact with the Treatment and Supervision Team about what you will do and what your obligations will be in terms of counselling and urinalysis.
The Court will now provide to you a copy of the Case Plan and that will be the obligations that you need to do in order to achieve the work that will be necessary to engage in the Order.
Hopefully this will work, but you need to put the effort into it. You need to do it properly. I wish you good luck.
You may be seated.
| I certify that the preceding one hundred and fifty-seven [157] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: Date: 2 May 2023 |
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