R v Burns

[2024] NSWDC 191

District Court

New South Wales

Medium Neutral Citation:

R v Burns [2024] NSWDC 191

Hearing dates:

28 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 10 years and 6 months with a non-parole period of 6 years and 10 months

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Large commercial quantity

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

CRIME — Drug offences — Supply prohibited drug — Commercial quantity cannabis

CRIME — Drug offences — Dealing with proceeds of crime

SENTENCING — Penalties — Imprisonment

SENTENCING — Aggravating factors — Breach of conditional liberty — Financial gain — Record of previous convictions — Rolled up quantities — Series of criminal acts

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty — Remorse — Steps towards drug rehabilitation

SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Objective seriousness — Form 1 offences

SENTENCING — Sentencing procedure — Agreed facts — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Childhood depravation — Childhood sexual institutional abuse — Impact of childhood sexual abuse — Drug addiction — Mental health disorder — Significant health issues — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Afu v R [2017] NSWCCA 246

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Cahyadi v R [2007] NSWCCA 1

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Hamzy v R (1994) 74 A Crim R 341

Jadron v R [2015] NSWCCA 217

Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381

Markarian v the Queen(2005) 228 CLR 357

Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59

Nasrallah v R [2021] NSWCCA 207

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Burns [2010] NSWCCA 279

R v Consigli [2023] NSW DC 194

R v Ellerman (District Court (NSW), 16 June 2023, unrep)

R v Figg [2023] NSWDC 194

R v Gavel [2014] NSWCCA 56

R v Glynatsis [2013] NSWCCA 131

R v Harris [2007] NSWCCA 130; 171 A Crim R 267

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v MJB [2014] NSWCCA 195

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Smith (1987) 44 SASR 587

R v Wheeler [2000] NSWCCA 34

R v XX (2009) 195 A Crim R 38

Ramos v R [2018] NSWCCA 206

Stanton v R [2021] NSWCCA 123

Van Ryn v R [2016] NSWCCA 1

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Weininger v The Queen (2003) 212 CLR 629

Category:

Sentence

Parties:

Beric Andrew Burns (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
R Pontello SC (for the accused)
C Todd (for the Crown)

Solicitors:
Aulich Criminal Law (for the accused)
Public Prosecutions (NSW) (Crown)

File Number(s):

2021/357106; 2021/357138

JUDGMENT – ex tempore revised

Introduction

1. Beric Burns is for sentence today for five very serious offences, two of which carry maximum penalties of life imprisonment. All relate to the supply of considerable quantities of drugs, mainly methylamphetamine. In total he supplied about 1.3 kilograms of methylamphetamine over a four-month period. Burns was able to accumulate nearly $1 million in cash as a consequence of his criminal activities.

2. Burns entered guilty pleas in the Local Court. I will be imposing an aggregate sentence today. Each indicated sentence will be reduced by 25% to recognise the utilitarian value of his guilty pleas. I will take care that the process of accumulation not erode that benefit.

3. The sentence I impose must also have regard to sentences imposed on those to whom Burns supplied his drugs.

Agreed Facts

4. There are Agreed Facts before the Court. As is obvious from the detailed facts supplied, each offence was, taking into account its objective features, very serious.

Large commercial supply

5. Between August and September 2021, Burns supplied Logan Figg with just over half a kilo of methylamphetamine. The supply started with amounts of 1 ounce, or 5.3 grams. The amounts then escalated in size to 28 and 56 gram deliveries. I note that even though we moved to imperial measures last century, drug suppliers appear to be traditionalists when it comes to measures or quantity.

6. There were 19 supplies up until September 2021. The price varied but Burns asked for between $10,800 and $15,000 for 28 grams or 1 ounce. Burns’ partner, Natasha Consigli assisted in some of those supplies. Figg then supplied to his customers, the drug users. At times, Burns offered credit to Figg, who it seems, was able to meet his debts. The facts do not disclose what profit Burns made per supply.

Commercial supply of methylamphetamines and other drugs – matters on Form 1

7. Another of Burns’ clients was Mark Ellerman. On 6 October 2021, Burns supplied him with 10 ounces or 284 grams of methylamphetamine for $74,000: A matter on the Form 1.

8. On 12 October 2021 there was another supply of 10 ounces which, as it was intercepted, was able to be weighed. The matter for sentence, the methylamphetamine weighed 278 grams with a 74% purity.

9. Just under a kilogram of cannabis leaf was also seized. The cannabis weighed 975 grams: The other matter on the Form 1.

Large commercial supply

10. Burns’ phones were being monitored by police. During the period September to November 2021, in addition to the drugs supplied to Figg and Ellerman, it is accepted and agreed, that he supplied over 500 grams of methylamphetamine to a number of others. He did so on an almost daily basis. The amounts supplied in individual transactions range from 3.5 to 56 grams (2 ½ ounces) or more.

Proceeds of supply and commercial supply of cannabis

11. Two other counts relate to the proceeds of his supply operation and the supply of close to 3 kilograms of cannabis.

12. Burns and Consigli had access to a storage unit in southern Wollongong. That unit was monitored by police. They stored money and cannabis in the unit. Both Burns and Consigli were captured moving, counting, and dealing with cash. The unit was searched by police on 16 December 2021, and $943,000 was found. Police also found just under 3 kilograms of cannabis in seven cryovac bags. The search of homes associated with Burns also revealed more cash and a cryovac machine and other indicia of drug supply.

Formal charges

13. In appropriate negotiations pursuant to the early guilty plea scheme, it was agreed that the matters that I have just summarised be broken up into five charges and two matters on a Form 1.

1. The first is charged as – Supplying Prohibited Drugs in not less than a Large Commercial Quantity: Drug Misuse and Trafficking Act 1985 (NSW), s 25(2). It carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years: Drug Misuse and Trafficking Act 1985, s 33(3).

2. The second matter is also charged as – Supplying Prohibited Drugs in not less than a Large Commercial Quantity: Drug Misuse and Trafficking Act 1985, s 25(2).

3. Deal with proceeds of crime: Crimes Act 1900 (NSW), s 193(b)(2). The amount involved was the $943,000 cash seized at the storage unit. It carries a maximum penalty of 15 years imprisonment.

4. The second supply to Ellerman was charged as – Supply not less than a Commercial Quantity of Drug methylamphetamine: Drug Misuse and Trafficking Act, s 25(2). It carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years: Drug Misuse and Trafficking Act 1985, s 33(2). Two matters on the Form 1 – possession of the cannabis leaf and the other methylamphetamine supplied to Ellerman attach to this matter.

5. The 2.9 kilograms of cannabis found in the shed was charged pursuant to: s Drug Misuse and Trafficking Act, s 25(1). It carries a maximum penalty of 10 years.

Objective seriousness

14. An assessment of objective seriousness or the gravity of each offence is a critical component of the sentencing process. While there are no prescribed set of descriptors that must accompany such assessment, I trust that those matters critical to my assessment of the objective seriousness of each matter and the totality of the offender’s crimes are readily apparent from these remarks.

Large commercial supply

15. When the matters were in the Local Court it was agreed that for each large commercial supply, all the Figg transactions should be rolled-up into one count, and all the transactions, except those involving Ellerman, be rolled up into another.

16. Large Commercial Quantity for the Prohibited Drug methylamphetamine is 500 grams. There is no upper limit. This accumulation of drug quantities from multiple transactions was entirely appropriate. It was accepted by the defence: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217. It is axiomatic that rolled up quantities involve a series of criminal acts. But care must be taken not to double count aggravating features such as s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW). Although the number of occasions the drugs were supplied, and the nature of the supply operation remain relevant considerations.

17. There is an advantage to an offender in the use of a rolled-up charge. It restricts the maximum available sentence for the single offence rather than the total theoretically available maximum sentences for a multiple charges. The disadvantage here is that as the quantity of drugs exceeded the large commercial figure it puts it in the life sentence range with a higher standard non-parole period.

18. That said, in any sentencing exercise the whole of the conduct of the offender must always be considered regardless of how the charge or charges come before the Court. All of the conduct encompassed in the rolled-up charges is relevant: R v Glynatsis [2013] NSWCCA 131 at [68].

19. Some of the drugs were seized and thus were not able to be distributed, but most of it was. The role of the offender is very relevant to my assessment of the objective seriousness of each offence and its location in some notional range of seriousness. I have to consider here that he contributed financially to the costs of setting up the operation, he stood to, and did make, a distinct profit as distinct from other cases where payment for services rendered are made. It was his operation, he managed it. He had a decision-making role.

20. Here, as the Crown submit, Burns played a major role in providing product for others to distribute to our community – mainly methylamphetamine, but to a less extent, cannabis. The drugs were distributed for profit, that is for greed, as the proceeds offence demonstrates.

21. His application of the profits of this activity were directed initially to the purchase of quantities of drugs for on-sale. He chose to involve himself in the distribution of drugs in our community knowing full well the damage that was being done. He had had a long-standing problems with drugs. Drug use had blighted his life from when he was young, but he played this important role in distribution of the drugs to other users.

22. In total about 1.3 kilograms of the methylamphetamine was sold over the 4-month period. Burns operated alone with some limited assistance from his then partner, Consigli. His business was not particularly sophisticated. He was not part of a cartel. But he did have access to considerable amounts of the drug and he provided it to a number of buyers, who then took the risk of distributing that drug at street level across New South Wales. He took his cut of the considerable profits illicit supply can make. His actions, as is obvious, were clandestine.

23. The seriousness of this retail distribution lies in part in its contribution to the servicing and the maintaining of the market for the drug methylamphetamine. This market in turn provides the economic incentive for the manufacture of the drug at bulk and wholesale levels, and then distribution to streel level users.

24. While I do not distinguish between the type of drugs, when I come to the cannabis, I note that cannabis falls into a different category, given the penalty ranges fixed by Parliament.

25. The amount of profit generated remain important factors. It bears repeating that the sale of illicit drugs causes considerable harm, not just to those who use it but to the community in general. Crimes are committed by those who seek to obtain funds for drugs, family life is destroyed, and personal lives are destroyed. The funds obtained fund other crimes. There is thus a community interest in appropriate and just punishment for such offences.

26. I accept that the offender voluntarily stopped offending. This is generally, and here, a matter of mitigation: R v Burns [2010] NSWCCA 279. But sentencing considerations often point in different directions. Burns only stopped supplying after he achieved the profit, the ‘nest egg,’ he set as his goal.

Proceeds

27. The maximum penalty is 15 years. A broad range of offences are contemplated by the section. A number of matters that must be considered when assessing objective seriousness: Ramos v R [2018] NSWCCA 206. I have to take into account; how the funds were obtained; the manner of dealing that led to the funds, the subject of the offence; and any planning or sophistication involved.

28. Here as the Agreed Facts reveal there was the storage unit, it was organised and clandestine. The underlying criminal conduct here is also a matter for sentence; it thus raises questions of totality and the need to avoid double counting. And of course, I take into account the amount involved.

29. The harm that could be occasioned was nipped in the bud by the seizure of the money. Here the money appears to represent the profits of the drug supply business run by Burns with Consigli. He aimed to achieve a financial gain and set them up for the future. This seems to be the critical reason he engaged in, and then stopped, offending.

30. The offence of money laundering is intended to ensure that criminals do not retain the proceeds of their criminality and, in addition to the crimes that generated them, are punished for the criminality that is represented by the possession of those proceeds. It would be quite wrong for an offender to escape that additional punishment in respect of possession of the proceeds of crime: R v Burns at [27]. But that said, care must be taken not to double count against the offender matters common to both the supply and the retention of the funds generated as profit from that supply.

31. In summary, while I must assess each individual offence and indicate a sentence in relation to each, the general principles noted above apply to each. The individual charges, however, were the product of charge negotiation and prosecution discretion.

32. Ultimately, I must determine on a sentence that reflects not just the objective seriousness of each matter, but all the purposes of sentencing. I must then synthesise an aggregate sentence that is just and appropriate for the totality of the offender’s crimes, taking into account also the case made for him: Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.

33. Here, each case was part of criminal activity organised by Burns. It endangered community safety on a number of levels. Each case can be distinguished from the other, primarily by the amount subject of the single or rolled-up transactions, noting that this distinction also delineates the penalty range as the other general principles apply to each of them.

34. I note the large commercial quantity amount was;

1. only reached by rounding up; and

2. is at the very bottom of what is an open-ended range that can, and often does, involve many kilograms of the drug.

35. I also note that the commercial supply was similarly just over the minimum 250 grams that fixes the penalty range.

Form 1

36. I do not sentence for the matters on the Form 1, but they do here lead to an increase in the sentence for the matter to which they relate, the Ellerman supply. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39]-[42]. Sometimes, as here, that increase can be substantial: Attorney General’s application No 1 at [18].

Maximum and standard non-parole period

37. The seriousness of the two most serious offences is reflected in the maximum penalty of life imprisonment and the fact that Parliament has sought to fix a standard non-parole period of 15 years for such offences. The standard non-parole period represents the non-parole period for an offence taking into account only the objective factors that affect the relative seriousness of that offence.

38. Careful attention to each maximum penalty and the standard non-parole period (where applicable) is required. Not just because Parliament has legislated for them. Here they provide sentencing measures to be balanced with all other relevant factors. They invite comparison between this case and others. That said, it is not appropriate to first look to the maximum penalty or standard non-parole period and then make proportional deductions from it: Markarian v the Queen (2005) 228 CLR 357 at [30]-[31]. I must, so far as it is possible, give content to the standard non-parole period when I synthesise appropriate sentences.

Criminal record

39. Burns appeared before the Children’s Court on a number of occasions. He spent time in juvenile detention. He first appeared before the Local Court in 1986. Between 1986 and 1995 he appeared regularly before the Local Court NSW and the Magistrate’s Courts in Queensland.

40. A pre-release report, Exhibit A, Tab B, notes Burns attributed his history of antisocial crimes to; illicit drugs use; antisocial lifestyle; and poor choice of associates. There was a significant reduction in the frequency of his offending between 1995 and 2005, and then nothing until 2013. That period, he told the parole officer, coincided with him completing a drug rehabilitation program and then abstaining from using illicit drugs.

41. In 2013 he was arrested for a commercial drug supply offence and eventually sentenced to 8 years 3 months imprisonment. A substantial finding of special circumstances was made. He told a parole officer in 2019 that after a back injury, he had commenced using drugs again to self-medicate. He said this drug use, associated gambling, and the fact he was living well beyond his means, led to that offending.

42. Burns was released to parole on 4 May 2019, after serving a minimum 4 years and 10 months. His pre-release report was very positive, noting he had engaged in drug relapse prevention activities and contributed in other ways during his time in custody. His response to working in gaol at that time did not attract good reviews, however.

43. He was released voluntarily into a residential rehabilitation program. He successfully completed it in March 2020. He was still on parole at the time he committed this offence, an aggravating fact that must be taken into account on sentence. His parole was breached, and he served the balance of parole from the date of his arrest, 16 December 2022 until 14 October 2022, a period of 10 months.

44. During this period in custody, he has had no gaol discipline infractions.

45. The offender’s criminal history is relevant to determining the proper sentence. It indicates that this offence was not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offences here, a more serious penalty is warranted. That penalty must have additional focus on retribution and deterrence and the protection of society: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477].

39. I have the pre-release report prepared in 2019 and the breach report from 2001. Burns’ parole was breached because of this offending. His parole supervisors thought that he was responding well. Obviously, he was lying to them.

40. As I have taken into account the commission of these offences while on parole as an aggravating feature, it would be wrong to additionally punish Burns by dating the sentence from when his parole expired. Restraint is particularly required here as the early part of his time on remand was subject to COVID-19 restrictions which made his time in gaol even harder than it would otherwise have been. I propose to commence this sentence 3 months after he went into custody on 16 March 2022.

Subjective case

48. Most sentencing proceedings, particularly in busy regional courts, do not involve some general joinder of issues between prosecution and an offender. Calling and testing evidence is required if an asserted fact is controverted or if a judge is not prepared to act on an assertion.

49. Here the subjective material was not supported by evidence formally on oath, but it was relatively uncontroversial. Burns provided an affidavit, but the Crown indicated fairly that Burns would not have been challenged had he been called. Burns did not seek in that affidavit to undermine the objective facts, the subject of the Agreed Facts before the Court.

50. I have the benefit of a report from a respected psychologist, Dr Lennings; a report of Associate Professor Robinson prepared for compensation proceedings in relation to the offender’s abuse in juvenile detention; documents relating to childhood trauma; an apology letter from the Director General of Community Services in relation to that abuse in juvenile detention. There are also Justice Health assessments in relation to his chronic liver condition; and personal references from people who are dealing with him in gaol.

51. Burns’ affidavit does not address the objective circumstances of his offending. In it, he adopts the history he gave to Dr Lennings, and with an inconsequential correction, what was said and recorded by Professor Robinson.

52. He was born in 1968. He is now 55. He sets out in summary what he describes as a “tough childhood”. His father died when he was very young. He was exposed to domestic violence by his mother’s partners. He left school early. As a teenager he spent time in juvenile detention where he suffered sexual abuse. At times he has been able to work, and work hard. He has played rugby league, but a drug addiction acquired while he was a teenager has blighted his life until relatively recently. That addiction is reflected by his criminal record.

53. He has had five years of sobriety with the help of Narcotics Anonymous and a committed sponsor.

54. He is presently settled at the Macquarie Correction Facility and able, mostly, to manage his diet required by his chronic liver problems; which he may have for the rest of his life. Macquarie is a privileged gaol, and he has earned the right to be there.

55. He is actively engaged in work and programs. He has solid plans for his future and is utilising his time in custody well.

56. He spent the early part of his time on remand subject to COVID-19 restrictions, a matter that must be taken into account in reduction of penalty. Prisoners have no control over their lives during the restrictions, and they significantly increased the impact of loss of freedom caused by imprisonment.

Remorse

57. In matters such as this there is no one personally to apologise to. Drug suppliers can show their remorse by; cooperating with the authorities; admitting their guilt; facilitating the course of justice; and, if they show insight into their offending, and making appropriate efforts to rehabilitate themselves.

58. Burns has spoken to his referees about the impact of his offending on the community and he has expressed the desire to help others by community work on release and, as he did on his last sentence, help other drug addicted prisoners by involvement with Narcotics Anonymous. He has had the benefit of Narcotics Anonymous in dealing with his own long-standing drug problem.

59. I will take all those matters into account. But care is required. This was his position when he was last released to parole. But his progress was limited. He made a choice to use his criminal contacts to accumulate a nest egg; not by legitimate work but by drug dealing. That choice however was, I accept, impacted on by his background.

60. As Dr Lennings said at par 50, “His impaired executive functioning deficits – a function of the comorbid Traumatic Brain Injuries [he has suffered] and his Post-Traumatic Stress Disorder”. Dr Lennings notes that these conditions:

“… all found a common pathway in short term thinking, ignoring of consequences and falling back into old patterns of thinking and behaving from a survival perspective. In this narrative the history of both distal and proximal causes added to his engagement in the offence making it more likely to occur.”

Ill health

61. Burns’ chronic liver disease can be managed in custody with the help of Justice Health. But in custody he does not have the freedom to control his diet, he does not have free access to doctors, chemists and specialists as those of us in the community do. Judges do not ignore the lived experience of gaol. His condition will make his time in custody harder than a prisoner without that illness.

62. Offenders generally cannot escape punishment because of their ill health or medical conditions: R v Smith (1987) 44 SASR 587. But ill health can mitigate punishment, particularly where, as here, prison will be a greater burden on the offender by reason of that condition and it carries with it a significant risk.

Moral culpability

63. An offender who had the start in life that Burns had does not bear equal moral responsibility with those who might be determined to have a ‘normal’, or an ‘advantaged’ upbringing. His background has left a mark, it has compromised his capacity to learn from experience, as Dr Lennings’ Report makes clear. Those effects do not diminish over time and will be given full weight in determining the sentence: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [43].

64. Burns has been diagnosed Post-Traumatic Stress Disorder, which developed when he was very young. That condition too, leads to amelioration of his moral culpability. It reduces the need for general deterrence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. It will also add to the burden of custodial sentence, although as Dr Lennings notes, paradoxically the custodial environment is providing him with a settled way in which he can adjust to his longstanding problems.

65. Dr Lennings was asked to address the key factors derived from a helpful summary provided McClelland J in De La Rosa. Dr Lennings noted Burns presents with “multiple mental health and potential cognitive issues” relating to a number of head knocks he received. As a consequence, he will be more “vulnerable than [a] typical offender in gaol.” He notes, “Burns appears strongly motivated to use his time in gaol to ‘work on himself’ and to be a better person.”

66. Dr Lennings went on however to say that the “long period in gaol, following so closely [on] from his lengthy incarceration … 2013 to 2019 increases the risk of institutionalisation”. Burns requires trauma related therapy. But, as Dr Lennings’ points out, given the violence endemic to our prison system, there is a potential for re-traumatisation.

67. Burns will need help from a forensic psychologist to develop some insights into his offending. While psychologists are available to prisoners in custody, there are long waiting lists. He also requires formal psychotherapeutic intervention. Dr Lennings, who has long experience dealing with those in custody, notes that it is likely this treatment need will go unmet until his release. Dr Lennings suggests that a sentence that maximises his time in the community would be most beneficial to Burns’ rehabilitation.

68. Dr Lennings and Professor Robinson also set out in detail the impact of the sexual offending on Burns. I will not go into details, but I have had a chance to review their reports. A sexual assault can have a profound and highly detrimental impact on a child assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67]; Nasrallah v R [2021] NSWCCA 207 at [100]-[102].

69. This is one of the reasons why significant penalties are imposed on those who offend against children. Such impacts are relevant by way of mitigation on a number of levels.

70. A court does not devalue the impact of the traumatic events detailed in the reports, and the destructive impact of those events on the adolescence of this offender. A person’s background is always relevant and here it can help explain why as a young person the offender took up illicit drug use and crime. It also helps me understand the impact of the related Post-Traumatic Stress Disorder.

71. I have referred to matters that reduce this offender’s moral culpability. I include the effects of childhood deprivation; exposure to domestic violence; life on the streets; childhood trauma; being the victim of sexual assault; and mental health issues: Bugmy; Nasrallah v R; De La Rosa at [177]. Often these matters are interrelated, sometimes inextricably so. This case is an example where all are present, and all must be taken into account. Even in the face of entrenched recidivism, his subjective case does allow for some mitigation of; the sentences to be indicated, the total sentence. It will be taken into account in the structure of the sentence by a finding of special circumstances.

Parity

72. Drug distribution businesses or networks do not come with organisational charts. The courts do from the best we can. There is no indication here that Burns was part of any syndicate. Rather, he saw an opportunity to obtain and distribute drugs and make a profit. He had a willing provider and he had willing customers. Two of those customers have been sentenced by other judges. I sentenced Consigli: R v Consigli [2023] NSW DC 194.

73. List judges, such as myself, try as best we can to have all related offenders dealt with by the one judge. But that is not always possible.

74. I have had the benefit of reading the material about the other co-offenders put before me in Exhibit A. This sentence must be determined having regard to the circumstances of the co-offenders and their respective degrees of culpability – “like must be compared with like.” However, different personal and criminal histories, and different involvement in offending or different offences can “justify a real difference in the time [a person] serve[s] in prison”: Postiglione v The Queen.

75. The principle known as parity applies. It is a classic example of the need, so far as is possible, to ensure equal justice: Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at [51]; Postiglione v The Queen; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.

76. I have my sentencing remarks for his then partner Consigli on 12 April 2023: R v Consigli. I have Judge Abadee’s sentence of Figg of 2 June 2023: R v Figg [2023] NSWDC 194. And I have Judge Musgrave’s sentence of Ellerman on 6 June 2023: R v Ellerman (District Court (NSW), 16 June 2023, unrep). I note that Judge Musgrave and Judge Abadee did not have the benefit of the others’ sentencing remarks.

77. Each other offender had different subjective circumstances. Each received a 25% reduction for the utilitarian value of their guilty pleas. Each received aggregate sentences. Each were sentenced for their corresponding roles which relate to only parts of Burns’ criminal activity. Consigli was sentenced to 2 years, 6 months, non-parole period 1 year, 3 months. Figg was sentenced to 6 years and a non-parole period of 4 years. Ellerman was sentenced to 8 years with non-parole period of 5 and a half years.

Submissions

78. The parties here, in compliance with the Practice Note, provided me earlier this week with the evidence to be tendered and written submissions. I have had the chance to read and consider them. I am indebted to Mr Todd, Crown Prosecutor, and Mr Pontello SC, for the offender, for those comprehensive written submissions to which they spoke this morning. I have sought in this judgment to do justice to them.

79. So far as matters of principle are concerned there is little difference between them. Those matters were discussed in submissions today. I do not intend to explicitly refer to each of the matters raised by counsel, but I have considered and addressed them in coming to my determinations as to the appropriate indicated and aggregate sentences.

Structure

Special circumstances

80. The evidence relating to; the offender’s need for trauma informed psychological treatment; his chronic liver disease; the fact that he will need help adjusting to normal community life on release; and his demonstrated progress towards rehabilitation while in custody; all provide a basis for a finding of special circumstances. That said, the length of the sentence that I will be imposing already allows for a long period on parole, applying the s 44 Crimes (Sentencing Procedure) Act ratio. I am mindful of the requirement that the minimum for which he should be imprisoned should properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59].

Totality

81. A sentencing judge must evaluate, in a broad sense, the overall criminality involved in all of the offences, and having done so determine what, if any, downward adjustment is necessary in the aggregate sentence in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentence: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).

82. Each count involved discrete acts of criminality, however each count had many common features, as they form part of what was a four-month continuous illicit drug supply operation.

83. Each charge is designed to encompass the offender’s criminal activity during that period, and the purposes of sentencing apply to each. The sentences should be partly cumulative, but the aggregation of all the sentences as I indicated earlier, must be a “just and appropriate measure of the total criminality involved.”: Postiglione v The Queen; Cahyadi v R.

84. In such cases a sentencing judge faces a number of practical problems. A simple arithmetical addition of the sentences appropriate for each individual offence would result in an aggregate which was not called for in all the circumstances: Van Ryn v R [2016] NSWCCA 1 at [228]-[230].

85. At the same time courts have to ensure that the public confidence in the administration of criminal justice requires the community not be left with a perception that a person who commits a series of discrete offences can escape effective punishment: R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]; Van Ryn v R at [228]- [230]; R v Cahyadi at [27]; R v XX (2009) 195 A Crim R 38 at [52].

Instinctive synthesis

86. A moment’s consideration will show that the detailed material produced to the Court by the Crown and the defence give rise to a number of competing considerations of some complexity. Facts can point in one direction when one considers one aspect of sentencing, and a different direction in relation to another.

87. Here it is accepted that the offender has, during his time on remand, demonstrated significant progress towards rehabilitation. It is accepted that after the lengthy time in custody his crimes demand he will need assistance and monitoring in order to do so. He must be tested in the community because, as the Crown point out, I must be very guarded because he has previously failed those tests.

88. In matters such as this, which involve significant dealing in illicit drugs for profit, the community expect that adequate punishment should be sufficiently severe to deter this offender, as it has failed to do in the past, and more particularly deter others from doing what he did. But Burns must be released into the community. If his sentence has the effect of discouraging or impeding his process towards rehabilitation, the community may not be protected from future crimes.

89. Burns is, at present, highly motivated to improve himself. Motivation is important. Too severe a sentence could result in a disproportionate level of punishment. That could operate to increase risk of community safety on release. This can arise if he becomes institutionalised by serving a long sentence, or if the value of any steps already taken diminish over time. The sentence should not destroy hope of normal life after the end of his imprisonment. What is a proportionate sentence, however, can depend on the perspective of the observer, whether they are the offender himself, the community, or the appellate courts: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [26]-[45] (Basten JA).

90. Ultimately, my duty as a sentencing judge requires an attempt to take all of these matters into account, translate the complexity of the human condition and human behaviour and reduce them to mathematics of punishment: Weininger v The Queen (2003) 212 CLR 629, at [24].

Orders

91. I note that each indicated sentence has been reduced by 25%. I note that care has been taken not to erode that benefit but the process of accumulation. There will be a finding of special circumstances here.

92. I have to indicate sentences for each matter.

• Sequence 3: For the large commercial supply I indicate a sentence of 7 years and 6 months with a non-parole period of 4 years and 10 months.

• Sequence 21: For the large commercial supply I indicate a sentence of 7 years and 6 months with a non-parole period of 4 years and 10 months.

• Sequence 4: For the proceeds of crime offence I indicate a sentence of 3 years and 9 months.

• Sequence 7: For the commercial supply of methylamphetamine, taking into account the matters on the Form 1, I indicate a sentence of 6 years with a non-parole period of 3 years and 9 months.

• Sequence 8: For the commercial supply of cannabis, I indicate a sentence of 2 years and 3 months.

93. The term of the aggregate sentence is 10 years and 6 months. There will be a non-parole period of 6 years and 10 months. That sentence will commence on 15 March 2022, making the offender eligible for release to parole on 14 January 2029. The balance of the term reflecting a finding of special circumstances is 3 years and 8 months commencing on 15 January 2029, the total sentence will expire on 14 September 2032.

94. The offender’s release to parole will be dependent on a positive finding that community safety can be met by the State Parole Authority. I note that there are presently before me no confiscation proceedings. I will entertain those proceedings if they are listed.

**********

Decision last updated: 29 May 2024