R v Burge (No 2)
[2024] ACTSC 20
•5 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Burge (No 2) |
Citation: | [2024] ACTSC 20 |
Hearing Date: | 31 January 2024 |
Decision Date: | 5 February 2024 |
Before: | Christensen AJ |
Decision: | See [90]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – dangerous driving – common assault – Drug and Alcohol Treatment Order cancelled – s 80ZH review - s 80ZD imposition or resentence – Bugmy principle – term of imprisonment – rehabilitation |
Legislation Cited: | Crimes(Sentencing) Act 2005 (ACT) ss 35(4), 63, 80ZD, 80ZH Crimes Act 1900 (ACT) s 26 Criminal Code (ACT) s 312 Criminal Code 1995 (Cth) s 132.8A Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 7 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 DPP v Makoi (No 3) [2023] ACTSC 337 Dunn v R [2023] NSWCCA 1 Hoskins v R [2021] NSWCCA 169 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v BS-X [2021] ACTSC 160 R v Burge [2022] ACTSC 376 R v Hagen (No 2) [2023] ACTSC 386 R v Hagen [2022] ACTSC 362 R v Irwin [2019] NSWCCA 133 R v Tonna (No 2) [2020] ACTSC 362 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 |
Texts Cited: | ‘Early Exposure to Alcohol and Other Drug Abuse’ in the Public Defenders New South Wales (ed), The Bugmy Bar Book (November 2019) Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2023 (ACT) House of Representatives Standing Committee on Family and Human Services, Parliament of Australia, The Winnable War on Drugs: The Impact of Illicit Drug Use on Families (Final Report, September 2007) |
Parties: | Director of Public Prosecutions ( Crown) Mark William Burge ( Offender) |
Representation: | Counsel S Samuel ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 257 of 2021 SCC 258 of 2021 |
CHRISTENSEN AJ:
Introduction
1․Mark William Burge comes before the court for a decision as to what is to occur following the cancellation of his Drug and Alcohol Treatment Order (Treatment Order).
Background
2․Mr Burge was initially sentenced on 11 January 2022: see R v Burge [2022] ACTSC 376 (R v Burge) for four offences committed on the afternoon of 11 December 2019 –
(a)Aggravated burglary contrary to s 312 of the Criminal Code (ACT) (CAN 4691/2020);
(b)Dangerous driving as a repeat offender contrary to s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CAN 4692/2020);
(c)Damaging Commonwealth property contrary to s 132.8A of the Criminal Code 1995 (Cth) (CAN 4697/2020)
(d)Common assault contrary to s 26 of the Crimes Act 1900 (ACT) (CAN 10468/2021)
3․The original sentence imposed on Mr Burge involved a total term of imprisonment of two years and nine months imprisonment, suspended from the date of sentence with a Treatment Order for a period of two years, until 10 January 2024, with a good behaviour order for the balance of the sentence, until 21 February 2024. That is, the sentence of imprisonment that was suspended under the custodial part of the Treatment Order was a period of two years.
4․The terms of imprisonment and the Treatment Order related to the primary offence of aggravated burglary, and the associated offences of aggravated dangerous driving and common assault. It is these offences that are the subject of the court’s current consideration.
5․Mr Burge was convicted and, without passing sentence, released on a 12-month recognisance with a surety of $200 to be of good behaviour in relation to the damage Commonwealth property charge. The order for this offence did not form part of the Treatment Order.
6․Mr Burge engaged with the Treatment Order, with the level of engagement considered below, from 11 January 2022 through until 22 July 2022 when Mr Burge failed to attend the Court and a warrant was issued for his arrest. On 25 November 2022, Mr Burge was arrested in NSW for offending in that jurisdiction, and was remanded in custody. He was released in NSW on 16 May 2023, and was found by the police in the ACT on 13 December 2023.
7․From that date, Mr Burge was remanded in custody in the ACT, and, on 15 December 2023, the Treatment Order was cancelled and the matter was listed for conclusion of the process pursuant to s 80ZH(4) of the Crimes(Sentencing) Act 2005 (ACT) (Sentencing Act). The reasons for the cancellation reveal that the basis was pursuant to s 80ZD(3) of the Sentencing Act, that is, there was a breach of the Treatment Order by way of commission of an offence.
Section 80ZH of the Sentencing Act
8․Section 80ZH(4) of the Sentencing Act provides that court must conduct a hearing for a review when the court is considering making an order under s 80ZD(4)(a) cancelling the Treatment Order (see s 80ZH(4)(b)) or under s 80ZD(2)(b) cancelling the Treatment Order and resentencing the offender (see s 80ZH (4)(c)).
9․It is relevant to consider the application of s 80ZH because s 80ZH(6) provides that the court may, on the review, confirm or amend the order as the court considers appropriate: see R v Tonna (No 2) [2020] ACTSC 362 at [36] (R v Tonna (No 2)). In contrast, section 80ZD is narrower in scope as to the orders the court may make. A preliminary consideration is therefore what orders are currently available for the court to consider.
10․I conclude that, here, the process of review commenced at the stage of cancellation, and then has continued through to the determination to be made today. That is, both s 80ZH and s 80ZD of the Sentencing Act apply. An opportunity for submissions as to the decision to cancel the Order was afforded at the initial hearing of the review on 15 December 2023. The subsequent hearing on 30 January 2024 was focused on the court’s decision as to imposition or resentence.
11․The Explanatory Statement to the equivalent review provision in the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 provided that the subsection was concerned to ensure that –
[t]he court must conduct a hearing for a review if cancelling or suspending the DATO, or resentencing the offender. This is to allow for procedural fairness in circumstances where the offender is at risk of being returned to full-time detention.
12․On the practical application of these provisions, the outcome of the initial stages of the review on 15 December 2023 resulted in the Treatment Order being neither confirmed nor amended. While an order of confirmation or amendment was available, the order made, without submissions to the contrary by either party, was that the Treatment Order was cancelled. The court is to now finalise the review process and make a determination pursuant to s 80ZD Sentencing Act, having regard to the orders available to the court pursuant to s 80ZD(4).
Section 80ZD of the Sentencing Act
13․Section 80ZD of the Sentencing Act relevantly provides –
80ZDBreach of Treatment Order – commission of offence
[… ]
(4)If the court cancels a Treatment Order under subsection (2) (d) or (3), the court must either –
(a)impose the sentence or imprisonment that was suspended under the custodial part of the Treatment Order;
(b)if the court considers it appropriate in the circumstances – resentence the offender for each offence in relation to which the Treatment Order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol Treatment Orders).
14․Both parties submitted that the appropriate course in this matter was one of resentence rather than imposition of the sentence. I agree with this for the reasons that follow, and accordingly, s 80ZD(5) of the Sentencing Act, as to the orders that may be made where there is an imposition, is not in my view applicable in this matter.
15․As is apparent from the terms of s 80ZD(4), the court has two options available following cancellation arising from the commission of an offence. That is, either impose the sentence that was suspended, or, if it is considered appropriate in the circumstances, resentence the offender.
16․The terms of the subsection suggest that the starting point is the imposition of the suspended portion, or, if the court considers it appropriate in the circumstances, a resentence exercise can be undertaken. This can be contrasted from the considerations following a cancellation due to unsatisfactory circumstances pursuant to s 80ZE(2), in which it is provided that the court is to take into account the extent of compliance with the treatment and supervision part of the Order as a preliminary consideration in determining whether to impose the suspension or resentence the offender.
17․This distinction in the sections suggests that s 80ZD(2) is to be read as not requiring, as a preliminary consideration, regard to be had to the extent of compliance, and that, as a starting point, the court imposes the suspended portion. It is only if the court considers it appropriate in the circumstances that there be resentence.
18․It is of assistance in working out the meaning of s 80ZD(4) to consider the Explanatory Statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2023 (2023 Explanatory Statement), this subsection having been one of the amendments in effect from 9 November 2023, and being amendments to the legislative framework directed towards improvements to the administration of Treatment Orders and the operation of the Drug and Alcohol Sentencing List.
19․The 2023 Explanatory Statement makes clear that after a cancellation for a breach of a Treatment Order by the commission of an offence, flexibility is available to the court and that when the court considers it appropriate, there is to be a process of resentence:
[Section 80ZD(4) …] increase[s] the flexibility of the court when cancelling a Treatment Order under subsection (2) or (3). This Bill provides that where the court cancels the Treatment Order under subsection (2) or (3), the court may either impose the sentence of imprisonment that was suspended under the custodial part of the Treatment Order; or if the court considers it appropriate in the circumstances, resentence the offender for each offence under the Treatment Order in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing.
20․I conclude that, while a staged process is undertaken, no greater weight is to be given to the imposition of the suspended portion.
21․For s 80ZD(4), imposition of the suspended portion is not a preliminary position that can only be displaced in appropriate circumstances. Rather, the court is to consider firstly whether it is appropriate in the circumstances to resentence the offender. If so, the court proceeds as otherwise provided by s 80ZD(4)(b) of the Sentencing Act. If the court does not consider it appropriate in the circumstances to resentence, the court must impose the sentence of imprisonment that was suspended under the custodial part of the Treatment Order: see s 80ZD(4)(a) of the Sentencing Act.
22․In this matter, there is a circumstance that readily persuades me that resentence is appropriate in the circumstances. This conclusion means it is unnecessary to consider the complications that can arise from whether an order is one of imposition or resentence. It is also, at this time, unnecessary to determine whether what was said by Baker J in R v Hagen (No 2) [2023] ACTSC 386 as to whether the considerations that inform the court’s determination following a breach of a suspended sentence and good behaviour order ought to be applied to a determination under s 80ZD (or s 80ZE). There is a distinction from the objectives of the legislative provisions that weighs against the considerations set out in R v Hagen necessarily applying to the court’s decisions under Part 5.4A, but, again, given the circumstances that arise here, that is unnecessary to decide at this time.
Decision to resentence
23․The circumstance that leads me to conclude that it is appropriate to resentence the offender is the period of time that has elapsed since the offence was committed, the period of time since the original imposition of the Treatment Order, and the period of time since there has been no compliance. This later period of time arises as a result of the further offending, and Mr Burge having absconded from his Treatment Order and the jurisdiction.
24․Being satisfied that this is a circumstance giving rise to a resentence exercise should not be mistaken as Mr Burge’s defiance of the court orders resulting in an opportunity for leniency in sentence. It simply reflects that there are sentencing considerations that are now informative to the sentencing exercise that were not known at the time of the imposition of the original sentence.
25․These considerations may ultimately weigh towards leniency or suggest against leniency but, either way, to give effect to individualised justice and in order to ensure a sentencing outcome that best meets the sentencing purposes in s 7 of the Sentencing Act, including protection of the community, a resentencing exercise is required.
Resentence
Maximum penalties
26․For the purposes of determining the appropriate sentence, the maximum penalties are naturally the starting point, these being –
(a)Aggravated Burglary: 20 years imprisonment or a fine of $320,000 or both
(b)Aggravated Driving: 5 years imprisonment or a fine of $ 80,000 or both
(c)Common assault: 2 years imprisonment
Facts of the offending
27․The facts of the offending are set out in the agreed statement of facts from the original sentence proceeding (Exhibit A) and are detailed in R v Burge at [12]-[27].
28․In essence, Mr Burge and another male person went to a residence in Waramanga and took items from the house, placing them in a vehicle parked in the driveway. The owner of the property was recently deceased, and a neighbour contacted police. Police arrived and blocked in the vehicle.
29․Mr Burge returned to the vehicle and police attempted to stop him. Despite multiple directions to stop, Mr Burge did not do so, and a taser was deployed, although not effectively, with only one of the two prongs hitting Mr Burge. Mr Burge was able to get into the driver’s side of the vehicle.
30․As he opened the door to do so, Mr Burge struck the inside of the upper left leg of one of the police involved, causing her pain. Mr Burge then drove his vehicle and hit the police vehicle, causing the damage that established the Commonwealth charge.
31․Mr Burge then reversed his vehicle in the direction of the police officer who was forced to move out of the way and into a nearby bush. This act is a continuation of the common assault charge on the police officer.
32․The vehicle was then driven by Mr Burge for a relatively short period of time contrary to a police direction to stop. During the driving, Mr Burge drove in excess of the speed limit and at one stage, drove on the incorrect side of the road. Mr Burge had previously been convicted of an offence of this type and was a repeat offender.
33․The vehicle was found by police the following day and items taken from the house were found inside the vehicle.
34․On 26 April 2020, police located Mr Burge and he was arrested in relation to this matter.
Nature and circumstances of the offences
35․The nature and circumstances of the offending were considered by Refshauge AJ in R v Burge at [43]-[50] and at [53]-[60].
36․I agree with the observations made there. I also observe that there was a brazenness to the offending in terms of it being committed during daylight hours, seemingly taking advantage of an unoccupied home, and in the conduct driving away from the police, assaulting a police officer in the process. This suggests a strongly deterrent sentence is warranted.
37․The aggravated burglary offence involved the entry to an unoccupied home, with no damage on entry. The value of the property taken is unknown and was returned. The aggravation of the charge arises from it being one committed with another person, with Mr Burge being the “motivating party and the organiser”: see R v Burge at [49].
38․The driving conduct was serious, but did not involve many aggravating factors other than the elements of the offence: see R v Burge at [57]. The pursuing police were put at risk.
39․The common assault involved an application of force to the leg of the police officer, although this was accepted to have been done accidentally rather than deliberately. There was a continuation of the assault in terms of driving in the direction of the police officer.
Victim Impact
40․As observed in R v Burge at [59], the act of common assault caused pain to the police officer, and no doubt emotional distress arising from the circumstances of the offending.
41․The family member who had oversight over the home that was entered also no doubt experienced distress from the entry to the home and the taking of the property, even if it was later recovered.
Subjective circumstances
42․Mr Burge is 36 years of age and a father of three children.
43․Mr Burge’s subjective circumstances are set out in detail in the original sentence proceeding: R v Burge at [61]-[89]. For the purposes of resentence, it is relevant to consider any additional information known as to those subjective circumstances, with this including Mr Burge’s level of engagement with the Treatment Order. The later of this, given the passage of time since the original sentence order, is particularly informative as to the prospects of rehabilitation.
44․The initial information as to the subjective circumstances of Mr Burge describes him as someone who experienced childhood disadvantage and childhood physical health issues, and someone who came [redacted].
45․Despite these difficulties, Mr Burge completed year 10 education and obtained a number of qualifications from the Canberra Institute of Technology. Mr Burge did engage in sporadic employment in the construction industry and in factory work. In 2016, he gained employment on a remote cattle station in Queensland where he worked for a period of years as a general hand.
46․When his father became terminally ill, Mr Burge returned to Canberra and unfortunately resumed the use of alcohol and illicit drugs following his father’s death. This resumption followed a long history of abuse of various substances from when he was an adolescent, and an earlier experience of grief during adulthood when his mother passed away.
47․This use of illicit substances has resulted in Mr Burge having a significant criminal history across multiple jurisdictions. He was [redacted], and went on to engage in offending behaviour involving property, dishonesty, driving and some occasions of violence. Mr Burge has been sentenced to imprisonment on a number of occasions and has been returned to custody following breaches of parole orders.
48․It was this use of illicit substances that led to the offending behaviour on this occasion, and to the attempt to address his substance use through a Treatment Order. Prior to the Treatment Order, Mr Burge had engaged with very few rehabilitation support programs.
Engagement with the Treatment Order
49․Unfortunately, the opportunity for rehabilitation through an ACT Supreme Court Treatment Order was also not the occasion when Mr Burge was able to commit to addressing his illicit substance abuse challenges and the offending behaviours he engages in as a result.
50․Mr Burge was in the ACT community for a period of approximately 6 months following the imposition of the Treatment Order. He was released from custody after agreeing to engage with the Order on 11 January 2022, and was last seen by authorities in the ACT at the end of June 2022. There was a period of some 7 months following Mr Burge’s release from NSW where there were no attempts to re-engage with the terms of the Treatment Order and it was only after he was seen by police that he came to be returned to custody in the ACT.
51․Within two weeks of the order being agreed to, Mr Burge was formally warned for alcohol use. There was again use of alcohol in April and in May 2022 which led to the imposition of sanction points. This is not in and of itself indicative of a failure of compliance with it well recognised and understood that addressing an entrenched alcohol and drug problem is not a linear process.
52․Mr Burge was otherwise inconsistent with attendance for counselling appointments, and there was a period of remand in custody in June 2022 following missed urinalysis appointments and a failure to comply with directions. Positively though, there was regular attendance for court appearances, and occasions in which Mr Burge was congratulated for progress he made in addressing matters such as housing and other life administration matters.
53․It can be observed that there was initially some positive compliance with the Treatment Order. This was not though consistent, nor was it maintained. On 28 June 2022 the ACT Supreme Court issued a warrant for Mr Burge’s arrest after he stopped engaging with the Treatment Order, and then failed to attend court.
54․The information now available establishes that he left the ACT. On 22 November 2022 he committed an offence in NSW of escaping police custody, the circumstances of which involved running and hiding from police when they wished to speak with him. Mr Burge served a two-month term of imprisonment in NSW from 17 March 2023 for this offence.
55․Plainly, any compliance with the Treatment Order came to an end some six months after the order was granted. I use the word ‘granted’ quite deliberately. This is because a Treatment Order is, as Refshauge AJ has said, a privilege. His Honour said in R v Tonna (No 2) at [2] that the making of a Treatment Order –
[…] relieves the participant of having to serve such a sentence of imprisonment, but only if they comply with the conditions of such an order, which are designed to help them rehabilitate themselves from the dependency. It is thus a form of privilege extended to those committed to a form of rehabilitation which, in general, improves their lives and those of their families, and protects and benefits the community.
Bugmy principles
56․The improvement that Mr Burge sought to his life can now be better understood with reference to the additional information that became available to the court on the resentence. Mr Burge gave evidence in this proceeding, with an aspect of this evidence being an expansion on the circumstances of his childhood.
57․In the previous sentence, Refshauge AJ found (R v Burge at [61]-[63]):
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 characterised 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.
58․In evidence, Mr Burge described the exposure to alcohol and illicit substance abuse by his parental figures, and occasions of physical violence that he was subjected to. He described his father being “in and out of prison for the best period of my life”, and otherwise confirmed the account given in the first of the Suitability Assessments noted above at [57].
59․It was submitted on behalf of Mr Burge that the evidence now available would satisfy the court that the considerations in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) arise. The prosecution submitted that the court would not find this.
60․The application of the Bugmy principles is not discretionary: R v Irwin [2019] NSWCCA 133 per Simpson AJA at [5], in which her Honour further said, “it is, of course, a matter of evaluation what impact they should have”.
61․In Hoskins v R [2021] NSWCCA 169, applied by Loukas-Karlsson J in R v BS-X [2021] ACTSC 160, Brereton JA said at [57] that ‘[…] it is not necessary to characterise an offender’s childhood as one of “profound deprivation” before the principle is engaged’. As was said by the High Court in Bugmy at [44], ‘it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision’.
62․This does not require that there be a strict causal connection between the deprived background (or, by extension, social disadvantage, as was considered in the companion case of Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600) and the offending before the court: R v Hagen [2022] ACTSC 362 at [40], with Baker J explaining –
[…] to echo the language of the plurality in Bugmy, what is required is that there be a sufficient link or connection between the disadvantaged background and the offence, “such that” the disadvantaged background can, to some degree, “explain” the offending. Where such a link exists, it can be concluded that an offender’s moral culpability is reduced. Where moral culpability is reduced, the weight which “would ordinarily be given” to punishment, denunciation and general deterrence may be moderated in favour of other sentencing purposes, such as rehabilitation: Bugmy at [44].
63․I am satisfied that the evidence now available to the court as to Mr Burge’s background explains to some degree Mr Burge’s offending behaviour such that his moral culpability is reduced.
64․In reaching this conclusion, I have had regard to the consideration by the New South Wales Court of Criminal Appeal’s observation of the judicial notice taken by the sentencing judge in Dunn v R [2023] NSW CCA 1 as to what is provided in the Bugmy Bar Book chapter on early exposure to alcohol and other drug abuse: see ‘Early Exposure to Alcohol and Other Drug Abuse’ in the Public Defenders New South Wales (ed), The Bugmy Bar Book (November 2019). This chapter provides in part –
The direct effects of early exposure to substance abuse on children may include: emotional and physical abuse and other forms of maltreatment; modelling of poor drinking and substance abusing behaviours; inadequate supervision; and separation from parents due to incarceration and hospitalisation. In turn, these factors increase the likelihood that children will themselves develop substance abuse problems, making it more probable that they will come into contact with the criminal justice system […]
There is a well-established, but complex, link between alcohol and substance abuse and criminal offending. This link may develop when children who have been exposed to substance abuse at an early age go on to model their carer’s poor behaviours.
65․Further, with reference to the 2007 House of Representatives Standing Committee on Family and Human Services Inquiry into the Impact of Illicit Drug Use on Families, the chapter provides –
The inquiry heard that parental use of drugs can normalise their use and cause children to model a particular kind of coping behaviour:
We have observed a dynamic where illicit drug-using parents use drugs to manage challenging personal experiences and pass this form of coping behaviour onto their children.
66․This last observation is particularly apt in respect to Mr Burge, who described his resort to illicit substance abuse following the passing of each of his parents, because of their own alcohol and substance abuse difficulties, and the unprocessed grief he continues to experience. Mr Burge was now, perhaps in part reflective of the aspects of the Treatment Order that he did engage positively with, able to articulate insight into the influence of his past experiences to his use of illicit substances, and, by extension, his criminal offending.
67․Mr Burge otherwise explained in his evidence his intention to finally deal with the “trainwreck” that is his life, as he described it. He is conscious of his age, and the impacts substance abuse had on his parent’s health, and to the implications for his own health.
68․Mr Burge is making efforts to build a relationship with his children and is using his time in custody to “re-gather” and to participate in education courses, and in counselling. He has identified he has a passion for cooking and is completing certifications with an intention to work in such a field in the future. He is making arrangements to attend a residential rehabilitation program upon release in a regional area so as to enable him to move away from the negative associations he has in Canberra.
69․It is also relevant to observe that since the offending in December 2020 (the offending the subject of this resentence) Mr Burge has committed only the one offence in November 2022. Mr Burge was essentially proud of this in his evidence, and, having regard to his criminal history, justifiably so. While no doubt any offending is undesirable from a community perspective, Mr Burge’s limited offending since December 2020 is telling as to his intentions and prospects of rehabilitation.
70․Additionally, in a letter relied upon as part of his evidence (Exhibit E), Mr Burge expresses that he is sick of using drugs to deal with his life, and that he recognises if he continues with such a lifestyle, he could spend over forty years of his life in and out of prison.
71․The court does though retain a level of caution in accepting Mr Burge’s apparent insight and intentions as to rehabilitation upon his release from custody. As the prosecution pointed out through the cross-examination of Mr Burge, there have been numerous opportunities for engagement in rehabilitation in the past, including most recently, the Treatment Order. And the letter provided by Mr Burge tends to apportion significant blame for his predicament on his former partner, rather than demonstrating a full appreciation of responsibility.
72․It is important in determining the appropriate sentence for Mr Burge that the court not lose sight that matters which have given rise to the reduction of moral culpability may at the same time increase the need for the protection of the broader community and for specific deterrence: DPP v Makoi (No 3) [2023] ACTSC 337 at [77], applying Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 and Bugmy at 595 [44]-[45].
73․Mr Burge is a recidivist offender who has still not taken solid progress towards addressing his core criminogenic risk of substance abuse, and the underlying cause of this criminogenic risk, being his experiences of trauma, disadvantage, and grief. Despite the examples of positive engagement with the treatment program and the positive intentions Mr Burge expresses, there remains reason for the court to be guarded as to the prospects of rehabilitation.
Plea of Guilty and Remorse
74․I largely agree with and adopt the extent to which Mr Burge’s pleas of guilty to the offences reduce the sentences to be imposed as was set out in Refshauge AJ in R v Burge at [108] and [109].
75․I observe though that the court now has the benefit of what was said in Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204, and applying this, I am not minded to moderate the discount available for the assault charge. While the prosecution case was clearly a strong one, no submission was made that it was an overwhelming one such that s 35(4) of the Sentencing Act applies.
76․Mr Burge demonstrated insight into the impacts of his offending at the time of the initial sentence proceeding, expressing his remorse and understanding of the risk he put the police and community members in: see R v Burge at [86] and [110].
Consideration
77․I am readily satisfied that no penalty other than one of imprisonment is appropriate, and no submissions were made contrary to that conclusion.
78․It was submitted on behalf of Mr Burge that the court resentence in a way that recognises the extent to which there was compliance with the Treatment Order and that facilitates the intentions he continues to have as to rehabilitation. The prosecution, appropriately, did not submit against an outcome that reflects a further opportunity for rehabilitation, but did emphasise the non-compliance with the order by re-offending, that a period of fulltime imprisonment is warranted, and the importance of deterrence in the sentence to be imposed. The extent to which I accept this submission is as considered above as to the determination of the reduction in moral culpability, while also appreciating the need to ensure specific deterrence.
79․Current sentencing practice must also be considered. Here, relevant considerations are as set out in R v Burge at [90]-[99]. The court also has as informative to current sentencing practice the sentences that were imposed on Mr Burge in the original sentence: see R v Burge at [118]. The sentences imposed at that time also, appropriately, applied the totality principle: see R v Burge at [117], which is a principle to again be considered.
80․A final consideration I make is that the terms of imprisonment to be imposed are such that a non-parole period is to be determined. No submissions were made contrary to this. It is appropriate to reflect in the non-parole period the determined intention to rehabilitate, that there was some demonstration of capability of this from the Treatment Order, as well as Mr Burge’s previous period of abstinence when employed. It is well recognised and was recognised in the original sentencing decision for Mr Burge, that community protection is secured by rehabilitation: see R v Burge at [103].
81․A parole order provides a form of specific deterrence to encourage rehabilitation and deter against any further re-offending. The non-parole period that will be imposed balances Mr Burge’s prospects of rehabilitation, while also reflecting community protection through the period of supervision. To further give effect to these factors, a specific order will be made as to a recommendation in respect to that parole.
82․The terms of this aspect of the non-parole order must reflect that the information known to the court includes that Mr Burge is anticipated to be required to spend a short period of time in custody in NSW in respect to a NSW parole order upon his release from ACT custody. Mr Burge understands this and has taken this into account in the journey he has planned for rehabilitation.
83․The orders as to imprisonment to be imposed on the resentence will otherwise reflect the period of presentence custody as it applies on the resentence. That is, the offending led to a remand in custody initially in three periods, being from 26 April 2020 to 28 April 2020, from 27 July 2020 to 26 October 2020, and then from 31 August 2021 to 7 January 2022, a total of 229 days. Since the execution of the warrant, Mr Burge has spent 54 days in custody, from 13 December 2023 until today.
84․During the Treatment Order, Mr Burge spent a total of 7 days in custody. While s 80ZD(5) does not in my view apply here, on a resentence exercise, s 63 of the Sentencing Act appears to me to be applicable. The total period of time in presentence custody to be backdated is 290 days.
[Her Honour spoke directly to Mr Burge]
85․Mr Burge, please stand.
(1)The conviction of you of aggravated burglary (CAN 4691/2020) is confirmed and the sentence of 20 months imprisonment, reduced from 23 months on account of the plea of guilty, is imposed to commence on 20 April 2023 and expire on 19 December 2024.
(2)The conviction of you of aggravated dangerous driving (CAN 4692/2020) is confirmed and the sentence of 6 months imprisonment, reduced from 7 months on account of the plea of guilty, is imposed to commence on 20 November 2024 and expire on 19 May 2025.
(3)The conviction of you of common assault (CAN 10468/2021) is confirmed and the sentence of 1 month imprisonment, reduced from 40 days imprisonment on account of the plea of guilty, is imposed to commence on 20 May 2025 and expire on 19 June 2025.
(4)The total term of imprisonment is 2 years and 2 months imprisonment, to be served from 18 April 2023 to 18 April 2025. A non-parole period of 16 months is set, commencing on 20 April 2023 and expiring on 19 August 2024.
(5)The court recommends to the Sentence Administration Board under s 120(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) that, when released on parole, you be required as a condition of the parole to undertake a substantial period of supervised or mandated drug rehabilitation, preferably in a residential drug rehabilitation facility, if a program is available to you.
86․Mr Burge, the Treatment Order did not have the outcome that you were wanting, but from everything I have read about you, and what you have explained to me, the hope of rehabilitation is not over.
87․You are fully aware of what you need to do, and you have expressed to me that you intend to still engage in rehabilitation programs, ideally a residential one away from Canberra, which sounds like a sensible approach.
88․From everything I have read, when you are working hard, you are not engaging in drug use. You have identified your passion for cooking now, and you have started those courses towards that. Keep going on that path.
89․I know you will not have as many opportunities for rehabilitation in the AMC as you will when you do come to be in the community, but it is in front of you now when you will be released, so keep working towards that, and with full respect to you, I hope we do not see you again.
Orders
90․For those reasons the following orders are made:
(6)The cancellation order of 15 December 2023 of the Drug and Alcohol Treatment Order is confirmed.
(7)The conviction of Mark William Burge of aggravated burglary (CAN 4691/2020)
is confirmed and the sentence of 20 months imprisonment is imposed to commence on 20 April 2023 and expire on 19 December 2024.(8)The conviction of Mark William Burge of aggravated dangerous driving as a repeat offender (CAN 4692/2020) is confirmed and the sentence of 6 months imprisonment is imposed to commence on 20 November 2024 and expire on 19 May 2025.
(9)The conviction of Mark William Burge of common assault (CAN 10468/2021) is confirmed and the sentence of 1 month imprisonment is imposed to commence on 20 May 2025 and expire on 19 June 2025.
(10)A non-parole period of 16 months is set to commence on 20 April 2023 and expire on 19 August 2024.
(11)It is recommended to the Sentence Administration Board under s 120(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) that:
(a)When released on parole, Mark William Burge be required as a condition of the parole to undertake a substantial period of supervised or mandated drug rehabilitation, preferably in a residential drug rehabilitation facility, if a program is available to him.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: J Liu Date: |
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