R v Burke

[2023] NSWDC 282

District Court

New South Wales

Medium Neutral Citation:

R v Burke [2023] NSWDC 282

Hearing dates:

4 May 2023

Decision date:

05 May 2023

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found to provide longer period of supervised parole to assist in the offender’s rehabilitation and return to a lawful life within the community.

Indicative Sentences:

002: 3 years + 9 months – NPP: 2 years

003: 1 year + 6 months

Aggregate Term of Imprisonment:

Sentenced to an aggregate term of imprisonment of 4 years comprising a non-parole period of 2 years and 4 months to commence on 21 June 2022 and expiring on 20 October 2024, upon which date he will become eligible for parole, and a balance of term of 1 year and 8 months to commence on 21 October 2024 and to expire on 20 June 2026.

Catchwords:

CRIMINAL – sentence - recklessly cause grievous bodily harm in company – larceny – seriousness of offences – substantial injuries inflicted - generosity of victim met by intimidation and violent, unprovoked attack – role of this offender - no evidence supplied to court of monetary value of items stolen, never returned – statutory aggravating factors - s 21A(2)(c) - implicit threat + use of weapon - s 21A(2)(eb) – offences committed in home of victim – subjective matters – letter from offender - self-serving statements – remorse & contrition – prospects of rehabilitation - aggregate sentence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Rex
Burke, Samaoso Joash Junior

Representation:

Counsel:
Def: Mr D Bhutani

Solicitors:
ODPP (NSW): Mr J Staples, Ms S Tam
DEF: Mr A Ibrahim, Karnib Saddik Law Firm Pty Ltd

File Number(s):

2022/00180861

JUDGMENT

1. HIS HONOUR: Mr Burke appears for sentence in respect of two offences. The first is recklessly cause grievous bodily harm in company contrary to s 35 (1) of the Crimes Act 1900. The maximum penalty provided is 14 years’ imprisonment and there is a relevant standard non-parole period of 5 years.

2. The second offence is larceny contrary to s 117 of the Crimes Act. The maximum penalty is 5 years’ imprisonment and there is no relevant standard non-parole period.

3. He was committed for sentence on 22 February 2023 from the Burwood Local Court and is entitled accordingly to a 25% discount for the utility of the plea; such a discount will be provided. He was arrested on 21 June 2022 and has been in custody since that date in relation to these matters only.

4. The facts are agreed and are as follows:

1. The victim is Ivoka Matrevski. At the time of the offences, the victim lived in a unit in Minnesota Avenue, Riverwood, in Department of Housing premises. The victim used cannabis to assist with his anxiety and depression.

2. In between 10am and 11am on 5 November 2018, the victim received a call from the offender asking to purchase cannabis. The victim replied that he did not have the quantity being requested.

3. Around 4pm that day, the victim received another call from the offender again looking to get cannabis. Again, the victim told him that he did not sell cannabis, but that he could come around and have what small amount he had if he wanted. The caller said something like, “We will come to you.” The victim did not provide his address but said, “Okay, I’m on Minnesota.” and the caller hung up.

4. Sometime after 5pm, the offender and two unknown males knocked on the victim’s door. The victim opened the door, and the three males came inside the unit.

5. The victim said, “What can I do for you guys?” and the offender asked for a quarter of cannabis. The victim said he did not have that much. The victim stood on a dining chair and took down a container of cannabis from the top of a bookshelf. He showed the men and said, “This is all I have”. The offender said, “I don’t believe you”.

6. The offender got onto the same dining chair and looked on top of the bookcase before getting down again. He said, “I still don’t believe you, if I find anything more, I’m going to do you in”. The offender then pulled out a knife from his shoulder bag.

7. On instruction from the offender, the victim took off a gold chain and crucifix which he was wearing and which he had worn for the last 16 years and put it on the table. The offender picked it up and put it in his bag. [I note the facts did not refer to the chain and crucifix as being gold, but the charge itself does.]

8. The offender then told the victim to erase the call history from his phone, which was a Samsung Galaxy Note3. The victim did not know how to do that, and the offender took the victim’s phone and put it in his bag.

9. The offender and the other two men smoked some of the victim’s cannabis, using his bong, and began rummaging around the room in the unit.

10. The offender then grabbed the victim’s Dudley brand aluminium baseball bat which was leaning against a wall near the bookcase. The offender put the bat near the front door and told one of the unknown males, “If he tries to make a break for it, use it on him”. The offender then went into the bedroom and bathroom and rummaged around.

11. The victim ran for the front door, grabbed the Dudley brand baseball bat and exited, closing the door behind him and then holding onto it. One or more of the males pulled at the door attempting to open it while the victim held tight and called out for help.

12. The victim’s grip slipped from the doorhandle and the door was opened. The offender came out of the door carrying the victim’s Easton brand aluminium baseball bat.

13. The offender swung the baseball bat at the victim and hit him on the left shoulder. The victim felt the entire left side of his body go numb. He could no longer hold his bat with his left hand, so he held it with his right hand instead. The offender hit the victim a few more times with the bat on the victim’s left arm and left-hand side of his body.

14. The offender swung the bat again and hit the victim on the left side of his face. The victim saw a large yellow flash. He called out again for help and fell to the ground, disoriented and woozy. The victim was unable to say how long he was on the ground for.

15. After some time, the victim pulled himself up onto the stair railing. The three men were all still there, standing outside the victim’s unit at the top of the stairs. The two unknown males were holding a cordless drill case and 180-bit socket set. The offender was still holding the baseball bat. All three males walked down the stairs and left, the offender dropping the baseball bat.

16. The victim had an anxiety attack and walked back to his unit. He saw that the whole unit had been rummaged through. The victim went to a neighbour to get help. He was very dazed and confused.

17. Police and paramedics attended. The victim was taken by ambulance to Liverpool Hospital and admitted. He remained in hospital for seven days and was discharged on 12 November 2018.

18. As a result of the offender hitting the victim with a baseball bat, the victim sustained the following injuries:

a) Left elbow - comminuted fractures, 10mm dislocation with noticeable soft tissue swelling. This injury required surgery including the insertion of wires, screws and a plate. The area was fixed with a back slab to the elbow.

b) Facial bone - comminuted fractures, including a deep left eye laceration trailing to the nose with nose deformity. The injury required surgery to repair the nasal laceration and nasal bones, stitches and a splint.

c) Left hand fracture requiring surgery and a POSI splint.

d) Abrasions to the left shoulder and chest wall.

19. The victim gave an electronically recorded statement to the police at the hospital.

20. Police established a crime scene at the victim’s unit. There was blood splatter observed on the front door frame and wall and on the railing outside the unit.

21. Police located the following items:

• a pair of sunglasses on the landing one level down from the victim’s unit.

• a serrated knife outside the unit complex.

• an Easton brand baseball bat on the cement outside the unit complex and a baseball bat in the doorway of the victim’s unit.

22. In April 2022, the offender’s DNA was matched to DNA on the sunglasses located on at the scene and on the Easton brand baseball bat. [I note from the material before me that that was no doubt because he was arrested in June 2022 in respect of subsequent unrelated offences committed on 12 April 2022]

5. I note that there is no evidence that the offender was asked to engage in a record of interview or that he did engage in a record of interview, or that he provided any information at any time to the authorities as to those who had accompanied him to the premises, nor is there any evidence of him having ever informed anyone as to what he did with the property specifically that he had taken, being the gold chain and crucifix and the Samsung mobile phone.

6. The offence of recklessly causing grievous bodily harm in company is in my view a serious example of such an offence. The offender in an entirely unprovoked attack repeatedly struck the victim to his body and head causing significant injuries, noting that the left elbow and the facial bones had “comminuted fractures.” Comminuted fractures are usually the result of significant force being applied, not simply from a slip or fall unless the fall is from a substantial height.

7. The victim had left the unit at the time that he was gratuitously attacked for no ostensible reason. By that stage the offender and his two colleagues had been informed that there was minimal cannabis present and had commenced searching the premises. The offender had already intimidated the victim by telling him, after inspecting the top of the bookcase, “I still don’t believe you. If I find anything more, I’m going to do you in” and then pulling out a knife from his shoulder bag, which it is reasonable to interpret was intended to strike fear into the victim in conjunction with the threat.

8. There is no evidence before me of the value of any of the items taken, that is, the gold chain and crucifix, the Samsung mobile phone, the 108-piece socket set or the cordless drill. However at least the gold chain and crucifix must have been of significant sentimental value to their owner, the victim, because the facts refer to him having worn it for the last 16 years. It was shortly after having produced the knife that the offender instructed him to take the chain off, and when he took it off and put it on the table the offender picked it up and put it in his bag.

9. The offender was apparently concerned that his phone call may somehow be traced through the mobile phone and asked the victim to delete the call history. As the victim did not understand how to do that, he then took the victim’s phone and put it in his bag. This was in my view designed to make it difficult for him to be detected as the offender and apprehended. It was the offender who had made the two phone calls in an endeavour to obtain cannabis; it was the offender who directed the other two persons present, and it was the offender who had in effect the lead or significant role in relation to all that had occurred. including requesting his colleagues to use the baseball bat. He had placed the baseball bat near the door for use should the victim try to make a break for it, while the offender then proceeded to search the bathroom and bedroom. The victim having left the premises, it was the offender who followed him with a second baseball bat before viciously assaulting him and causing significant injury.

10. There is no information before me as to any sequelae in terms of the injuries, but noting that the injuries required for the left elbow comminuted fracture and 10 millimetre dislocation, surgery including insertion of wires, screws and a plate and that the facial bone comminuted fractures required surgery to repair the nasal laceration and nasal bones, sutures and a splint, and the left hand fracture required surgery and a POSI (position of safe immobilisation) splint, it is clear that the injuries were substantial and must have had a significant effect on the victim. who was not discharged for a period of seven days after the infliction of the injuries.

11. It would appear that the offenders attended the premises with the object of obtaining cannabis and/or anything else that might attract their attention, and that it was this offender who was the director of the offending. There is no evidence in relation to either of the co-offenders as to doing anything other than being present, and at the end of the offending being seen to be in possession of some of the items stolen.

12. As to objective seriousness, Mr Bhutani, barrister for the offender, has submitted that the s 35(1) charge falls just below the mid-range for offences of this nature. The Crown submission, taking into account the seriousness of the injuries suffered by the victim, the manner in which the harm was inflicted and the reason for inflicting the harm and the surrounding circumstances, was that the Court would find that it fell at about the midpoint of the middle of the range of objective seriousness. I accept the submission made by the prosecution. Even though there is no evidence before the Court of any ongoing adverse effect to the victim, I have no doubt that there must have been a significant period of pain and suffering and potentially a need for further surgery in relation to the comminuted fractures.

13. The fact that there is no Victim Impact Statement cannot give rise to any inference that the offence had little or no impact on the victim. Crimes (Sentencing Procedure) Act 1999 (NSW) s 30E(5).

14. In addition, in respect of the s 35(1) offence, I note that there are two statutory aggravating features. The fact that the offence was in company is already taken into account by the nature of the charge as being an element of it. However, s 21A(2)(c) also applies. That is, the offence involved the actual or threatened use of a weapon. In my view, there was an implicit threat in relation to the knife and an actual use of a weapon constituted by the use of the baseball bat.

15. Baseball bats are of course weapons capable of causing serious injury, as it did here. The victim was struck a number of times with it.

16. A further aggravating statutory matter is s 21A(2)(eb), the offence being committed in the home of the victim. Members of the community ought to feel safe in their homes, even when they have invited others in to join them in the consumption of a prohibited drug. They ought not be set upon in the way that the victim was in this matter. It was his home and having received what might be regarded as a generous invitation to join him and partake of what little cannabis he had, his generosity was met by significant violence and consequent injury.

17. As to the larceny offence, as I previously referred to, there is no evidence of the value of any of the material taken, but I would, as I have said, at least assume that the gold chain and cross that the victim had worn for 16 years was something of significant sentimental value to him. I would assess the objective seriousness of the larceny offence as being towards the bottom of the range but not at the bottom.

SUBJECTIVE MATTERS

18. The offender was almost 21 years of age at the time of the offending, and he is now over 25 years of age, being almost 25 and a half years of age. There was of course a significant delay between the date of the offending on 5 November 2018 and his arrest on 21 June 2022. That was not the offender’s fault, but simply the fact that he was not detected until such time as his DNA would have gone on file as a result of the subsequent offences committed on 12 April 2022.

19. The material from which the subjective matters are drawn is the offender’s criminal history, a New South Wales Department of Corrective Services Commission Sentence and Appeals Report, and material tendered on his behalf, being his letter of apology dated 2 May 2023, a letter to the victim dated 2 May 2023, a letter from the offender’s mother dated 1 May 2023, a letter from the Reverend Talanai, being the pastor of the Central Hurstville SAOG, a reference letter from Natasha Hanisi, being a director of the Divinity Foundation Limited, a further letter from that same person, also dated 28 April 2023, and a certificate of completion of Cannabis Awareness Property Intervention Hub dated 5 September 2022, and a Sentencing Assessment Report under the hand of Amber Jeffery, Community Corrections officer, dated 3 May 2023. Subjective matters are drawn from that material. However, I note before referring to that material that the offender did not give evidence on sentence, and letters of apology to the Court are of little weight in the absence of the offender being prepared to give evidence and be cross-examined in relation to these assertions of remorse and contrition.

20. I note the letter to the Court from his mother. His mother is of course supportive of her son, as are in general all mothers. The letter was not objected to by the prosecution. She asserts that “he has shown sincere remorse for his poor actions that placed him in this position today and that he has showed his sincerity to make amends.” She says, “I can tell that through his tone, his future plans that he shares with me and the recognition of how wrong his past ways were.” She otherwise describes him as kind and loving and as having been encouraged in the family space to do the right thing, she never having witnessed him to commit any offence, and she claims that he accepts and knows that he has done the wrong thing and understands that he needs to make reparations for it.

21. His letter of apology to the Court is replete with repeated claims of remorse and contrition and finally being able to understand the error of his ways as a result of having spent time in gaol. As well as seeking to draw to the Court’s attention that of course his time in gaol has coincided with COVID and the conditions have been more restricted than they would otherwise have been, and claims that he spent many weeks in segregation and to have been locked in for almost one third of his time.

22. He said,

“Before I was bail refused, I have never been inside a gaol before and now having witnessed just how hard gaol is, I have promised myself that I will never find myself in this position again. I want to make a life for myself, a life worth living.”

23. He also claims, “I have never forgotten about the incident since it happened.” I would have less difficulty in accepting that if the offender had engaged in a record of interview when arrested and then admitted his participation in the offence and sought to assist the authorities to locate those others who were involved and/or all the stolen items.

24. It is easy to make self-serving statements when you cannot be cross‑examined on them. It is easy to make self-serving statements to one’s mother or parish priest or others with whom you have some connection in the community, such as Natasha Hennessy, who is the managing director of a charity designed to assist young Pacific Islanders to obtain employment, and particularly those who are exiting the correctional system to seek work. She indicates,

“This letter is to express our interest in offering Mr Samaoso Burke a contract as a trainee Community Liaison Officer for three months. This will enlist his skills and experience in developing and co-ordinating workshops for Pacific Islander and Māori young adults and youth and their families to understand how organised crime is affecting the community. Mr Burke will also be a co-worker in the Yadindji Employment Pathways Program and assist those from remote communities in navigating work and living in the city. We have known Mr Burke since 2020 and observed his character and his interactions over the last few years and believe he has the passion, skills and experience to effectively engage members of the community whom we wish to connect with.”

25. Neither of the two letters from Natasha Hennessy refer to being aware that the offender was awaiting sentence in relation to significant matters, or aware of any of his past offending, but from the nature of the program in respect of which it is suggested he can assist, it would appear that she at least has some background knowledge, if not specific knowledge.

26. Despite my cynicism in respect of the untested content of the offender’s letter to the Court, I will accept that there is at least some evidence of remorse and contrition, although as I have previously said, I would be much more satisfied of that finding if the circumstances were that the offender had admitted the offence when arrested and sought to then assist the authorities in relation to either or both identifying his co-offenders and endeavouring to assist in the return of any stolen property.

27. I will take account when determining the sentence that his time in custody has been adversely affected by the presence of COVID both in the community and in the prison system.

28. Of relevance to the sentence is his prior criminal history. It is not perhaps all that significant, but in October 2016 at the Sutherland Local Court, , he was sentenced in respect of two offences, being of common assault, domestic violence related, in respect of which he received a s 10 bond of 12 months with supervision to attend counselling and educational development, drug or alcohol rehabilitation and undergo therapy from a psychologist as well as having a further offence of destroy or damage property dismissed pursuant to s 10.

29. Unfortunately, on 12 April 2022, he was charged in relation to two offences, one being destroy or damage property in company, under $2,000 in value, and a further offence of stalk, intimidate, intend, fear physical et cetera harm.

30. In respect of each of those matters, he received a fine of $1,000 and a Community Corrections Order of two years, commencing on 3 November 2022 with supervision.

31. Those offences of course postdate the offending in this matter, but they do demonstrate that despite the content of the favourable references, including that from Reverend Talanai attesting to his assistance in various pastoral events, the offender has nonetheless engaged in offences at least involving violence to property and intimidation of others. That does not auger well for the prospect of successful rehabilitation.

32. Ms Jeffreys of Community Corrections states that at the time of the offending he was unemployed and relied on social welfare, and notes that even since being in custody - apart from the convictions in 2022, described by her as being in relation to a robbery, which appears to be inconsistent with the charges - however, that he has received one charge for custodial misconduct, which according to the Corrections report was for possession of a weapon.

33. His attitude is described as at the time of his actions demonstrating self-entitlement and acceptance of violence and a rejection of social rules. He apparently related his willingness to use violence to obtain illicit substances as due to his unaddressed substance use issues and lack of prosocial influences.

34. He claimed to Ms Jeffreys to be ashamed of his actions and asserted now held prosocial attitudes and stated to her that since the time of the index offence he has removed himself from these associations and indicated no desire to reconnect with these past associates, those being associates in the drug subculture.

35. Nonetheless, however, he committed the further offences in 2022. He informed Ms Jeffreys that at the time of his offending he had regular polysubstance use, predominantly cannabis and methylamphetamine, describing his use as having been at a cost of between $300 and $800 a day. I note that he was on unemployment benefits at the time.

36. Ms Jeffreys opined that if he were to continue to abuse illicit substances, his risk of violent reoffending remains high. Apparently, he does not consider himself to be a violent person, which would appear to be contrary to the evidence. He has said to have displayed a level of insight into his offending, although the level is not identified. He was assessed as being a medium to low risk of reoffending.

37. At the time of the offending, the offender was not an 18-year-old: he was significantly past the age at which the legislation regards an individual male as becoming an adult, being almost 21 years of age. Nonetheless, I accept that he was still relatively young, and it has been well accepted for many years that males do not simply become mature at the age of 18, and many require further years of development to mature, at least into their early 20’s, if not mid 20’s. I will take that into account.

38. Considering his age and relative lack of criminal offending, in my view, there is a reasonable prospect of rehabilitation. Of course, should he return (if he has stopped) to the use of prohibited drugs, he will inevitably in my view return to committing offences in order to obtain the drugs and/or the money to buy the drugs, as is unfortunately common in our community.

39. There are at least no reports while he has been in custody of him using any prohibited substance while in custody. Although he has done the Intervention Hub Cannabis Awareness Program, I note that he is apparently not engaged in any program concerning the use of methylamphetamine, which is a particular substance which is continuing to cause significant problems in the community.

40. There is no evidence that at the time of the offending he was affected by any substance other than the cannabis that he smoked while at the victim’s premises.

41. I note that the letters from Natasha Hanisi, dated 28 April 2023, refer to the offender’s assistance in the local community in Fairfield over a six-month period in 2020. It was submitted by Mr Butani on the offender’s behalf that in this matter there is a clear link between the offender’s substance abuse issues and the offender offending, given that the offender attended the premises to obtain illicit substances, and that accordingly the Court should place further significance on the issue of rehabilitation in the sentencing exercise.

42. I note that the only drug referred to in the offending is the cannabis which he was seeking to obtain that explains his attendance at the premises, but it does not in any way excuse the offending, which is of a serious nature.

43. Taking all those matters into account, with the 25% discount for the plea I have previously referred to, I intend to proceed by way of an aggregate sentence.

44. It is accordingly necessary to provide an indicative sentence in relation to each of the offences, and in relation to the offence of recklessly causing grievous bodily harm in company in addition to an indicative head sentence and indicative non-parole period.

45. In respect of the s 35(1) offence, the indicative head sentence is three years, nine months with an indicative non-parole period of two years.

46. In relation to the s 117 larceny offence, the indicative sentence is one year, six months.

47. The aggregate term is four years’ imprisonment with a non-parole period of two years, four months which will date from 21 June 2022, meaning that he will first become eligible for parole on 20 October 2024. The balance of term, or potential parole period, is one year, eight months, the total sentence expiring on 20 June 2026.

48. I have found special circumstances that provide for a longer period of parole than would otherwise be the case to assist the offender in returning to a lawful life and to have rehabilitation under a longer period of supervision than would otherwise be provided were the statutory relationship between the head sentence and the non-parole period to apply.

I note, Mr Burke, that you will not necessarily be released on the expiry of the non-parole period, which is 20 October 2024, because that is in the hands of the authorities, and if your conduct while in the custodial system is poor, they will be unlikely to release you at that time.

You need to ensure that while in custody you do every single course you can possibly think of to improve your life, that is, any course relating to prohibited drugs that might assist you to stop their use, and any course which might give you some qualification in life, whether it be forklift driving or anything else that is available. The more courses that you do in relation to reforming yourself and obtaining credentials to work, the more likely it is that you will be released at the earliest time, which will be no earlier than 20 October 2024.

If you continue to commit offences while in custody in relation to such things as fighting or being found in possession of weapons or using prohibited drugs or anything of that matter that constitutes a breach of prison discipline it is unlikely that you will be released at the earliest opportunity, and you really need to keep that in mind as you serve out the sentence.

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Decision last updated: 27 July 2023