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R v Burge

R v Burge

Case [2022] ACTSC 376 11 January 2022

Drug and Alcohol Treatment Order

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Burge

Details

AGLC: R v Burge [2022] ACTSC 376
Case: [2022] ACTSC 376
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown prosecuted Mark William Burge for aggravated burglary, aggravated dangerous driving as a repeat offender, damaging Commonwealth property, and common assault. The court was required to decide on the appropriate sentence and whether a Drug and Alcohol Treatment Order should be imposed on the offender. The court considered the nature and circumstances of the offences, the offender's criminal history, his drug dependency, and the principles of sentencing. The court found that the offences were serious but not the worst possible versions, and that the offender had shown genuine remorse and was willing to address his drug dependency. The court sentenced Burge to two years imprisonment for aggravated burglary, nine months imprisonment for aggravated dangerous driving, one month imprisonment for common assault, and ordered him to be of good behaviour for damaging Commonwealth property. The court also imposed a Drug and Alcohol Treatment Order for two years, requiring Burge to address his drug dependency and comply with regular urinalysis, counselling, and case management.

The court's decision was based on the offender's willingness to address his drug dependency and the potential benefits of a Treatment Order in reducing the likelihood of reoffending. The court emphasised the importance of the offender being honest with himself and with his Treatment Team, and working hard to address his drug dependency and achieve a drug and crime-free life. The court also noted the significant delay in the proceedings, which was partly due to the offender's actions, and did not justify any mitigation of the sentence. The court balanced the principles of punishment, deterrence, and rehabilitation in imposing the sentence and the Treatment Order, and took into account the harm caused to the victims and the community.

Orders