R v Burgess

[2012] NSWDC 260

District Court

New South Wales

Medium Neutral Citation:	R v Burgess [2012] NSWDC 260
Hearing dates:	16 November 2012
Decision date:	16 November 2012
Before:	Berman SCDCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period o 2 years and a head sentence of 4 years
Catchwords:	CRIMINAL LAW - Sentence - Assault - violence
Category:	Sentence
Parties:	The Crown Rachel Olive Burgess
Representation:	Director of Public Prosecutions Legal Aid Commission
File Number(s):	2012/78099

SENTENCE

1. Drugs are terrible things. Those addicted to them often act in a way which is atrocious and which causes significant harm to the community.

1. The offence before the Court today is a good illustration of that. Drug addicts lie, cheat, steal and rob with depressing regularity with little thought at all to the consequences of the victims. They do this precisely because they are addicted to drugs.

1. Of course that does not mean that in every case the moral culpability of an offender who commits an offence whilst addicted to drugs is reduced. The decision as to whether an adult person uses drugs is a matter of personal choice. Everyone knows that those who commence to use drugs risk becoming addicted to them. Some people have a reduced moral culpability because they have a reduced ability to reason appropriately about whether they will take drugs or not. But when Ms Burgess, as she put it "lost the plot" after having lost her job and began using alcohol and drugs to excess and then simply to get money for more drugs and more alcohol committed the terrible offence I am about to describe, she made her own decision and she must be punished for what she did.

1. The victim in this matter was a kind and friendly 77 year old man, Les Challoner. He and the offender became friends. Mr Challoner's wife passed away in September 2011 but the relationship between the offender and Mr Challoner continued. Mr Challoner is of course elderly and, like many people in the community of that age, is hearing impaired and wears hearing aids. Ms Burgess towards the end of 2011 needed more money for drugs than she had. Rather than recognise that and recognise that she could not continue to use drugs if she could not pay for them, she decided that Mr Challoner was a source of money. She lied to him. She said she had outstanding debts. Mr Challoner generously lent her $1,000. On other occasions after that, further requests for loans were made by Ms Burgess and Mr Challoner agreed. He handed over his money to Ms Burgess.

1. Ms Burgess recognises today the kindness that Mr Challoner demonstrated to her. She repaid that kindness by spending almost all the money that he had lent to her on drugs and then, on the one occasion that he refused, she bashed him and stole his wallet containing the princely sum of $70.

1. That occurred on 9 March 2011. Ms Burgess went to Mr Challoner's home. She was invited in and they began chatting and drinking. I am not sure if Ms Burgess' intention was always to ask for money but at some part of the afternoon she did ask Mr Challoner if she could borrow more money. It appears that Mr Challoner said that he would not and he asked Ms Burgess to leave. Ms Burgess did not leave, she got angry; angry at this man who had lent her money in the past and who was a vulnerable 77 year old. When Mr Challoner started to walk towards his front door with his back to her, Ms Burgess punched him three times at least, which caused him to fall to the ground. Ms Burgess was not finished with him either. She continued to kick Mr Challoner twice, not surprisingly that caused him pain. Mr Challoner managed to get up but once more Ms Burgess was not finished with him. She pushed him to the chest forcing him into a wall. He bounced off that wall and fell to the ground again. He was lying on the ground, face down when Ms Burgess reached into his back pocket and took his wallet. She took the money out, $70, and threw the wallet to the floor and left.

1. Mr Challoner managed to get up. He walked to his neighbour's premises. He was in pain and very distressed at what had happened to him. Police and ambulance were called. He was taken to hospital. He had a laceration to his right hand which was bleeding and significant bruising to both arms with pain to his lower rib and hip area.

1. Police caught up with Ms Burgess soon afterwards. They arrested her. To add insult to the injuries that she had occasioned to Mr Challoner, Ms Burgess described him to police as a "dirty old man". She told police, completely falsely, that he had made sexual advances towards her in trying to grab her. She said that that was what caused any problems between her and Mr Challoner. She denied taking money from Mr Challoner's wallet.

1. All right thinking people would think that the events that I have just described would have to be one of the lowest criminal acts that it is possible to contemplate. That is the sort of problem that comes about when drug users get addicted to drugs. As I mentioned earlier, drug users, drug addicts, act with little thought to the consequences for anyone else apart from themselves. This is not really meant to be a criticism of Ms Burgess' underlying character but it is meant to demonstrate just how serious the use of drugs is in our community.

1. It is a rare sentence matter in this court where there is not some element of addiction to drugs involved, but the events I have just described would have to be one of the worst offences that have come before this court, at least of recent times.

1. Ms Burgess, to make matters worse, was on two bonds to be of good behaviour at the time of this offending and a perusal of her criminal history indicates she has had trouble with the law before, including offences of violence. To her credit, she appears to be completely remorseful for the way she acted towards Mr Challoner and, because of her completely false allegation that he had tried to sexually assault her. Ms Burgess recognises that she hit rock bottom when she did what she did to Mr Challoner. I accept that she is significantly remorseful for what she did to that kind and elderly gentleman.

1. Ms Burgess is now 41 years of age. She grew up in Bankstown, was exposed to domestic violence where her father was frequently intoxicated and would assault her mother. As a child she apparently had problems controlling her emotions and anger. She went to school but left when she was about 14, left home when she was 16 and had her first child at 17. She has a work history and, indeed, of recent times it is a good work history. She lost her job as a process worker at Steggles apparently because she was chewing gum in breach of a regulation that everyone knew about and it was that, that she describes as being the catalyst for her downfall.

1. It is to be noted too that, in speaking of Ms Burgess' work history, she got those jobs off her own steam, although she was being supervised by the Probation and Parole Service on some occasions but at the time she got those jobs she managed to get those jobs all by herself and she felt proud of herself when she was working. There is thus considerable hope for the offender's future, the one qualification to that of course being her problems with drugs.

1. She has a significant history of substance abuse. Like most, she began with cannabis at the age of 14 or 15 and then she drank from about 16 or 17, drinking quite large quantities. She was abstinent after she went to a rehabilitation facility in 2006 and 2007. She also began using amphetamines from the age of 28 and has used that drug regularly since then, at least until her arrest. She has been in custody from 9 March 2012 and that has been her longest period off amphetamines since she commenced using them. She has tried drug rehabilitation in the past but, as the events I have described have just demonstrated, those efforts have not been successful.

1. The report of Dr First tendered on her behalf indicates a history of some mental illness but, having read the report carefully, I can see no connection between her offending and her mental illness. Her moral culpability is not reduced in any way because of her mental illness, nor is there any need to place less emphasis on general deterrence than would otherwise be the case. Her mental illness does not appear to involve her time in custody being harder than would otherwise be the case either. She is doing well in custody as I have mentioned before, not using drugs and has a position of some responsibility.

1. Although it may well be the case that Ms Burgess' visit to Mr Challoner that afternoon was so that she could get money for drugs from him, it does not appear that she planned this offence. It appears to have been a spur of the moment decision that came about when Mr Challoner, quite justifiably of course, refused to lend her any more money.

1. It could not be said that Ms Burgess was immediately remorseful for what she did. She may not have known the extent of the injuries that were occasioned to Mr Challoner until she saw photographs of him some time later, but from the moment she left his home she knew what she had done to him. In those circumstances, her decision to falsely accuse him of having tried to sexually assault her is a very good indication of the lack of remorse that Ms Burgess felt at the time. Her remorse may have thus been belated but I am satisfied it is now genuine.

1. This is Ms Burgess' first time in custody. Her prospects of rehabilitation are largely tied to the prospects of her putting her drug addiction behind her. She will need an extended period of supervision on parole to assist her to give up the drugs. Much depends on what happens when she is released from custody as regards her drug use.

1. She pleaded guilty at the earliest opportunity and so the sentence I impose upon her will be 25 percent less than would otherwise be the case. I will make a finding of special circumstances for the reasons I have just identified.

1. It remains the case, however, that this was a terrible crime. Ms Burgess recognises this. She recognises that no sentence other than one of full time custody is appropriate. The sentence I impose is as follows.

1. I impose a sentence of imprisonment. I set a non parole period of two years to date from 9 March 2012. It will expire on 8 March 2014. The head sentence will be one of four years, this Ms Burgess is eligible to be released to parole on 8 March 2014.

1. I dismiss the appeal the matter on the section 166 certificate

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Decision last updated: 01 March 2013