R v Burns

[2019] NSWDC 162

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v BURNS [2019] NSWDC 162
Hearing dates:	5 April 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence - seven years imprisonment. Non-parole period of four years and two months. To commence on 14 March 2018 and expire on 13 May 2022.
Catchwords:	SENTENCING — Relevant factors on sentence – police pursuit – multiple break enter offences – accessory to armed robbery – Form 1 matters – a life of few advantages – multiple victims – no concern for victims – no concern about likelihood of arrest – community cost of offending – backdating sentence – offences committed while on parole – application of totality principle – accumulation and concurrence – background of deprivation – special circumstances – aggregate sentence.
Legislation Cited:	Crimes Act (NSW) 1900 Criminal Procedure Act 1986
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Callaghan v R [2006] NSWCCA 58 R v Clinch (1994) 72 A Crim R 301 R v Elliott and Blessington [2006] NSWCCA 305 Green v The Queen (2011) 244 CLR 462 JM v R [2012] NSWCCA 83 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1998) 166 CLR 59 MAK v R [2006] NSWCCA 381 Ponfield [1999] 48 NSWLR 327 Simpson [2011] NSWCCA 534; (2001) 53 NSWLR 704 Slade v The Queen [2005] NZ CA 19
Category:	Sentence
Parties:	Jake Terence Burns (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms C Doosey (for the offender)     Solicitors: Johnston Legal (for the offender) Ms J Walshe (For the Director of Public Prosecutions)
File Number(s):	2017/00344855; 2018/00058701

Judgment – Ex Tempore Revised

1. Jake Burns was born in 1996. He had few, if any, of the advantages that most in our community expect to be given to a young man. His mother had significant problems, his father spent, and continues to spend, time in gaol. Burns was before the Children's Court for the first time when he was 15 or 16 in 2012. Breaches of Children's Court orders led to him being in juvenile detention for periods. He first went to gaol in January 2015. He was released in September 2016 but within three months was back in gaol serving a sentence which commenced in January 2017. He was released to parole on 8 October 2017. One of the conditions of his parole was that he stays in Wagga.

2. Burns acknowledges that it would have been a good thing if he had stayed there but he came to Wollongong. Although he continued to meet his parole appointments, he was by that time using methylamphetamine and within a very short period of time hanging out with others who had no respect for the community, for others' property or frankly, for themselves. He started committing offences, to which I will soon refer, on 23 October 2017. The offending continued until ultimately, following a police pursuit, he was arrested on 14 November 2017. He has been in custody since that date. He was on parole at the time, his parole was revoked. He served the balance of that parole until 8 May 2018.

3. While he was on remand an assault committed on 7 November 2017 was travelling in parallel with these proceedings but was not joined with them. He was sentenced in the Local Court to four months imprisonment for that matter, that sentence was from 1 May 2018 to 31 August 2018. While he was in custody his record indicates a number of discipline offences.

4. He appears this morning for sentence in relation to 16 matters:

• Two charges of receiving stolen property; s 188(1) Crimes Act (NSW) 1900, maximum penalty ten years imprisonment.

• Five matters of dishonesty obtaining property by deception; s 192E (1)(a) Crimes Act (NSW), maximum penalty ten years imprisonment.

• Aggravated break enter with intent to steal, the circumstances of aggravation being in company, s 113(2) Crimes Act (NSW), maximum penalty 14 years imprisonment.

• Break enter and steal; s 112(1)(a) Crimes Act (NSW), maximum penalty 14 years imprisonment. For the counts of aggravated break enter and steal the circumstance was also being in company; s 112(2) Crimes Act (NSW), maximum penalty 20 years imprisonment with a standard non-parole period for an offence which falls subjectively in the mid-range of seriousness of five years imprisonment.

• Accessory after the fact to armed robbery; s 97(1), s 347 and s 350 Crimes Act (NSW), maximum penalty five years.

• Police pursuit; s 51B(1) Crimes Act (NSW) which for a second offence which this was carries a maximum penalty of five years imprisonment, a substantial fine and an automatic disqualification from driving of two years.

5. I must also sentence him today for a summary matter of drive stolen motor vehicle which is on a s 166 Criminal Procedure Act 1986 certificate; that is s 154A(1)(b) Crimes Act (NSW) dealt with in the Local Court, maximum penalty is two years.

6. When I sentence him for three of the aggravated break enter and steal matters, he asked that I take into account eight other matters spread over those three charges. I do not sentence for those matters but they must be taken into account in the overall sentencing exercise.

7. Every sentencing exercise requires an analysis of what was done and it will be clear from what I am about to say that in the space of a month, perhaps less, a large number of people in our community were affected by the crimes committed by Burns.

8. On the morning of Tuesday 23 October 2017 Ms Collison parked her Holden Captiva near her house in Windang. While she was away an unknown person entered her home and took the spare keys to the car. Burns received those keys and drove the Holden away. When Ms Collison realised her car had been taken she went looking for it. She and her partner located the child seat, pram and baby bag, which had been in the car, discarded near Windang Bowling Club: Sequence 32, offence 1.

9. About 5.25am on the morning of 24 October 2017, Mr Britton left his home in Kiama to go to the gym. As he was leaving he saw a grey Holden Captiva driving in the street. He returned about 6.30am to find someone had broken into his garage and taken wetsuits, surfboard, body board, scooters, fishing rods and reels. Burns received this stolen property. Burns also drove Mr Britton's Toyota Land Cruiser from the location. Later that afternoon a man who was working in Mangerton noticed both the Captiva and the Toyota Land Cruiser. He was so concerned about what he saw that he took some photographs on his mobile phone of three men, one of whom was this offender, the other was Cody Lukey, who I sentenced last year. The Holden Captiva was located in Mangerton later that evening.

10. It would appear that so unconcerned was Burns about the potential for arrest that he had connected his mobile phone to the car's Bluetooth under the profile “Burnsy”. He had also left DNA on the car. That was sequence 2; receive stolen property and the drive stolen conveyance on the Form 1.

11. The third matter, sequence 5, is dishonestly obtain property by deception. The offender drove the stolen Land Cruiser to the Coles Express service station at Haywards Bay. He helped himself to just under $100 of fuel without paying. This offence was captured on CCTV.

12. The fourth offence, sequence 6, is aggravated break enter in company. Not long after Burns took the fuel he and Lukey went to the Stockland Shellharbour shopping complex and used a crowbar to smash in the glass entry door. They entered the shop via the hole that they had made but were confronted by a security guard. They fled. The incident was captured on CCTV. I have sentenced Lukey for this and other offences.

13. The next matter, number 5, sequence 9, dishonestly obtain property by deception. It also involved two matters to be dealt with on the Form 1. At about 6pm on 31 October 2017 Mr Gallagher parked his red utility near his house in Kiama. He had left his wallet, his driver's licence and other cards as well as a suitcase containing clothing in the car. He was due to leave the following day on a holiday but during the night the offender entered the vehicle and stole the suitcase and wallet.

14. Mr Gallagher only realised what had happened when he got up at 4am on 1 November to drive to the airport. He searched and found his suitcase. It appears he missed his flight because at midday he went to his IMB and was told that his credit card had been used to make online purchases for about $250. So unconcerned was he about detection that the offender had arranged for these purchases to be delivered to his home address in Mangerton.

15. The sixth, seventh and eighth offences all involve dishonestly obtain property by deception or attempting to do the same. They are related to use of credit cards and a larceny which are dealt with on Form 1s.

16. At about 4.30pm on 31 October 2017 Ms Sciacchitano parked her Audi station wagon in the driveway of a residence in Kiama. She left her handbag and her bankcards inside it. She unwittingly left her vehicle unlocked. Sometime overnight on 1 November Mr Burns got into the car and stole her wallet. When she contacted her banks, having found what had happened, it appears she was told that her St George bankcard was used twice for cab fares and her Bendigo bankcard was used to purchase goods worth over $300. An attempt was also made to purchase online goods worth over $500. Again, the offender's email address was used, and as with the other matter the address for delivery was his home in Mangerton.

17. CCTV footage from a cab showed that this offender was the person responsible for using the card. He has distinctive tattoos, which match his date of birth, his name and his email address. The cab went to near his home address in Mangerton. There was another matter on 1 November of taking and driving Ms Jagoe's car from her home in Kiama, be dealt with on the Form 1.

18. The ninth matter is an aggravated break and commit serious indictable offence. Three matters are attached to it on a Form 1. It involves forced entry by this offender and another person into Zoobs Pizza shop in Gerringong. The offenders smashed their way through the front window of the premises in the early hours of 2 November 2017. They made off with a Wi-Fi modem, a flame lighter and a small amount of cash.

19. Sequence 10, is another aggravated break enter and commit serious indictable offence with two matters on a Form 1, occurred at about 1.50am on 2 November 2017. Burns with two others attended The Gerringong café. They were in the stolen silver Yaris belonging to Ms Jagoe. The Gerringong café is a small family business. The offenders smashed through its front glass window, set off an alarm, rushed around the premises stealing a cash register, cutting the electric cord with a tomahawk. They stole a confectionery container, and property worth an estimated $520. A man living above the premises heard the alarm and saw the Yaris take off. The incident was captured on CCTV. The offender can be seen inside the premises using the lighter that had been stolen from Zoobs Pizza.

20. The eleventh matter, sequence 27, is another aggravated break enter and steal that occurred that same evening between 1 and 2 November 2017. Again Burns was with two others. Burns smashed the front glass door of the Speak N Easy café in Collins Street, Kiama. The premises were ransacked. The float was taken, as were laptops, iPads, keys, the charity tin and other items. CCTV footage shows the silver Yaris outside the cafe.

21. The next matter is another take and drive conveyance. At about 3.15am on the morning of 2 November 2017 Mr Rippon of Minnamurra woke to the sound of his vehicle starting and being taken away. This matter is on the Form 1.

22. The twelfth matter, sequence 29, is a break enter and steal. At 2am on 3 November 2017 Burns went to the Il Mio Sogno café in Shellharbour and used a jemmy to smash open the front door. Inside he stole cash from the register, the petty cash tin, the tip jar and other items valued at $800. Again, the incident was captured on CCTV and I am told it clearly depicts this offender. Police also received information about a stolen Toyota Hilux being driven in Wollongong. The prints and DNA match the offender.

23. The thirteenth matter is another aggravated break enter and commit serious indictable offence. There are three matters on a Form 1 attached to it. At about 3am on 12 November, Burns and another man went to the Quiet Coffee café in Gerringong. The front window was smashed, the offenders entered, stole a laptop valued at $1,500 and a camera valued at $500. A man who lived above the café was woken, he noticed what had happened and yelled at the offenders, who ran. CCTV footage again identifies this offender.

24. The next three matters occurred on 14, 15 and 16 November 2017 and include the matter on the s 166 certificate. At about 2pm on 14 November, Burns with Ethan Gualdi drove a stolen white Subaru to Manning's General Store in Kiama. Gualdi got out of the car. The agreed facts indicate that Burns was unaware that Gualdi had a knife with him. Gualdi ran into the store brandishing the knife, threatening those inside. Mr Nash, who worked in the store opened the till. Gualdi grabbed a large number of notes and ran out.

25. Although Burns was not at this time aware why Gualdi had entered the store it would have been apparent what had occurred soon after Gualdi got back into the car. About $800 in cash had been taken; bank notes were spread over Gualdi's clothing. The car took off. Police were alerted; not long after they saw the Subaru on Boland Road near Broughton Creek. Their Police car pulled in behind the vehicle and its devices were activated in an attempt to get it to stop. The Subaru failed to stop, it drove over the median strip on to the incorrect side of the road, then drove south in the northbound lane for a short distance before going to the correct side of the road and driving across the Shoalhaven River bridge.

26. Police pursued. The Subaru travelled south along the Princes Highway, made a right-hand turn through a red light into Bridge Road, Nowra, went at about double the 50 kilometre maximum speed, through a red light at the intersection of Bridge and North Street, south onto Berry Street. Again, the vehicle went onto the incorrect side of the road, at the intersection of Junction Street. It was still travelling at about 100 kilometres per hour. The police pursuit was, for obvious reasons, terminated. A short time later another police vehicle was given permission to re-engage the pursuit on Berry Street. The Subaru’s speeds ranged up from 70 to 100 kilometres per hour.

27. The Subaru drove across a number of raised roundabouts along Berry Street, on the wrong side of the road, before turning into Albatross Street. It went down McDonald Street, and the whole length of McKay Street. It slowed briefly at the intersection with the Princes Highway, contrary to a stop sign, and turned there. It reached speeds of 120 kilometres per hour in a 50 zone, along the entire length of McKay Street. It then turned left into Greenwell Point Road and collided with a barrier. The offenders took off but both were soon arrested.

28. It is apparent from that recitation of matters that this offender caused considerable distress to each of the persons whose property was taken or interfered with. It is apparent that he showed little concern for himself or anyone else in the community. The nature of the police pursuit means that he is lucky to be alive and is lucky he is not facing more serious charges because given the time of day someone could have been seriously hurt by his driving. His offences over this very short period of time had an enormous impact on a large number of people.

29. Today he gave me a letter saying he had deep regret for his offending behaviour and his thoughtless and selfish actions. They were more than selfless and selfish; they were seriously criminal and deserving of serious punishment.

30. He says "words are not enough" and he apologised to his family and to the community. He says he has had opportunities now to sit and reflect on his actions. He has plans for the future, they are sensible: engage in counselling, attend AA and NA, develop community ties, get work and reflect upon what he has done. He will have time to reflect upon what he has done. If one were to go simply to the available maximum penalties and standard non parole periods, he would be a very old man before he is released.

31. Ms Doosey, who appears on Burns' behalf, has put material before me including a psychologist report which makes a case for the degree of leniency: a degree of leniency I suspect many of the victims would not be happy having extended to him.

32. A judge has to balance a number of critical and important factors when it comes to sentencing. A judge has to, first and foremost, understand the seriousness of what was done. Individuals had their property taken, their cards used; they had their businesses and houses entered. There are many and diverse circumstances in relation to each of these offences. This possibility was recognised by the Court of Criminal Appeal in Ponfield (1999) 48 NSWLR 327. The circumstance of aggravation here (for the aggravated offences) was being in company. While there is no gradation of circumstances of aggravation set out in s 105 of the Crimes Act, in the circumstances here these matters would fall at the bottom of the range of what are already serious and aggravated offences. Committing crimes with others means more property could be taken but s 105A of the Crimes Act also includes circumstances involving physical harm to victims.

33. I do not, and the community should not, underestimate the impact of these offences. It is no excuse to say "Ah well they're insured". Not everyone is insured. In any event, we all pay increased premiums, we all pay the cost of increased protection and for locks and alarms and the like. The community bears a cost for offending such as this. Where a business is broken into consequential losses can sometimes have a real impact on profitability and whether that business survives. Even if it does survive they will have increased costs in regard to security, insurance; all that impacts on the bottom line.

34. I made a note of what the victim of a similar offence once told the Illawarra Mercury, "You work your bum off and someone just comes in and does what they want and take what they want. It teaches you not to be so trusting." Offences like this break down community ties, we learn not to trust our fellow citizens.

35. It is no excuse to say "ah well I needed money for drugs". I accept that Burns took up the use of illicit drugs well before he had a chance to make any rational choice. That matter I will address later but it is simply no excuse. In his frank interview with his psychologist, Ms Brann, he also admitted to getting a thrill out of his crimes. Well, maybe he did but it was a very short lived thrill. It is an attitude that reflects his youth and gross immaturity.

36. The Court, foremost, has to have regard to what was done and the impact on the community. Some of the offences have standard non-parole periods. I have and will, even in the short facts that I have summarised, give proper regard to the objective seriousness of the offending. I am required to give some content to the standard non-parole period. I am reviewing, as I have done, "the nature of the offending and its consequences": Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27]. There are reasons here for significant variation from the standard non-parole period including; the early plea of guilty, an acceptance of responsibility, the offender’s subjective case, and a finding that each of those aggravated matters would have to fall at the bottom of the range given the nature of the circumstance of aggravation and the modest amount of property taken; but I note my earlier comments.

5. There are also matters on the Form 1 which I have to take into account. They do operate to increase the sentence that would otherwise be appropriate. The increase operates to recognise the need for personal deterrence and retribution for the crimes for sentence to which each Form 1 relates. I do not impose separate penalties but the Form 1 matters are relevant to my determination of the appropriate sentence as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25 at [51]-[54]; (2005) 228 CLR 357.

6. Committing offences on parole generally justifies harsher punishment. When Burns was last released he made a promise to be of good behaviour and obey Parole Service directions. Those promises were broken.

7. The breach material from the State Parole Authority, Exhibit B, indicates the breach was primarily as a result of his re-offending but it is also clear that he had, as the reports summarise, “failed to adjust to normal community life”. There is no material before me which indicates what, if any, assistance was given to Burns on release. I am sure some advice and some help must have been offered to him.

8. I cannot double count matters where I have increased a sentence because of a breach of parole and I have taken his serving balance of parole into account when fixing a commencement date. When I come to fix his overall or aggregate sentence I am given considerable flexibility. I have to consider the totality principle. Further, this offender should not be disadvantaged simply because it took some time for the matter to listed for a sentence hearing.

9. I intend to backdate to some point before the expiration of the expired parole period but as Simpson J pointed out in Callaghan v R [2006] NSWCCA 58, it does not need to go back to the day he went into custody. I need to balance all of the relevant factors including the fact that there should be some punishment for the offence dealt with in the Local Court.

10. I referred earlier to the principle of totality. I must sentence here for many distinct offences with different consequences for their many victims. I am required to impose an appropriate sentence for each offence and to structure the sentences such that "the overall sentences are just and appropriate to the totality of the offending behaviour": Mill v The Queen (1998) 166 CLR 59 at 62-63.

11. There will be an accumulation of penalties but for the reasons I will outline, they will not be as significant as perhaps would have been the case for an older, more mature offender. I recognise that public confidence in the administration of justice requires that sentencing courts avoid any suggestion of a discount for multiple offending. This is particularly so "where offences are discrete and separate": MAK v R [2006] NSWCCA 381. However, as Ms Doosey pointed out, the totality principle also works to recognise that sometimes if one just simply adds up the appropriate penalty for each offence it can, and in this case would, result in a sentence that would be unduly harsh and crushing.

12. The severity of a sentence is not simply linear. The severity of a sentence increases at a greater rate than a simple increase in the length of the sentence. For example, a sentence of two years has a greater impact than a sentence for one year so far as the punitive aspects of sentencing are concerned: R v Clinch (1994) 72 A Crim R 301 at 306, approved in MAK.

13. There is material before me tending to "establish the background of deprivation": Bugmy v The Queen (2013) 249 CLR 571 at [40]. As I said earlier, Burns had none of the advantages many in the community expect would be given a child. All are comprehensively set out in Ms Brann's report, which is Exhibit 1.

14. The material was not confirmed in evidence nor was the material in the letter. Sentencing is, particularly in a busy list such as in Wollongong, is rarely capable of subtlety and refinement nor is it necessary in most cases. This case is one of them. Most sentencing proceedings do not involve some general joinder of issues between the prosecution and the offender. Calling and testing of evidence is required, in particular, if an asserted fact is controverted or if the Judge is not prepared to act on the assertion. Most often that occurs when someone puts forward a matter that is simply implausible so far as their subjective case is concerned or they seek to contest the objective seriousness of the offence.

15. Here there is no reason to doubt the bona fides of the psychologist, Ms Brann, who prepared the report. I caution myself that the report’s contents were not supported by evidence on oath from Burns; however, the focus of the report is on subjective matters. This includes the offender's many, many problems as a child and adolescent. They are not controversial, but they are sad and depressing. The report did not go to the objective seriousness of these many crimes, in fact, it revealed matters about his motivation for commission of the crimes that were against interest. It accords with all the material before me including the objective facts upon which I must sentence him. It was relevant and allows me to have some understanding of how he came to commit these crimes.

16. I will not go through the report in detail. It confirms that the offender both in his attitude and frankly, in the tattoos he wears, has been institutionalised and has been imbued with a distrust of authority. His father has been in and out of custody most of his life. There is a pattern, a learned pattern of behaviour that the courts see far, far too often. Every effort has to be made to break that cycle. His mother has had a number of significant problems in her life; given her presence I will not repeat all of them here. She has to look after herself and that has been hard enough without two boys to look out for as well. There is an older brother who was not a good influence on Burns. There was at least one stepfather who was violent and a drug taker.

17. There has been some support from other stepfathers but Burns grew up without boundaries, rules or supervision. He was allowed from a young age to do what he wanted. When he was young that he was subject to neglect. He was removed from his mother's care for a period; his school offered to help feed him. The people he grew up with he in the main did not like and those he did like were those who provided anti-social influences and introduced him to substance abuse. Those matters became his life. The report says he conceded that he got a rush or a thrill from committing break and enter offences: substance abuse, stealing, drug use, all became normalised. It is not surprising he did not thrive at school. It is not surprising he was suspended and truanted. He has never held a job; he has never had much opportunity to hold a job. Since first entering juvenile detention his time in the community has been measured in months. The longest time he had in the community was when he was "on the run" with his father in Melbourne, but even there he came to notice of the Courts in Victoria. He had a childhood condition which it appears has resolved. His drug use led to hepatitis C, but thankfully there now are treatment programs available in custody and that illness has been dealt with. His drinking and drug abuse, as I have alluded to, commenced when he was very young, too young to make any rational choices.

18. Although he has done the EQUIPS addiction course, when he was released in 2017 he did not appear to put in practise the lessons that he learnt. He has yet been able to complete other courses because of his classification and movements within the gaol system. EQUIPS has however given him some insight into the factors that led to his offending behaviour. He has no capacity, as yet, to organise his life; he has always woken up each morning without something to do or his life was structured by gaol regime. He remains totally dependent upon Corrections as to what he does and when he does it. It is not unsurprising that he has difficulty trusting others and has never established significant relationships with another.

19. His mother is still here and ready to support him. He hopes, on release, to move near her and avoid the Wollongong area. He hopes to have learnt to live a normal life in the community but it is difficult for anyone, let alone a person with the absence of personal resources, such as Burns, to learn how to lead a normal life while they are in custody. As Ms Brann concludes, Burns is becoming increasingly institutionalised. He has no specific mental health or medical problems. He has been assessed psychologically in the low to average range. He is understandably anxious and depressed about his prospects: no normal person facing a lengthy time in custody who was a normal person could otherwise but be anxious and depressed about the consequences.

20. He has never really had an opportunity or taken an opportunity to lead a normal community life. He will require support and encouragement to do so. He needs a very structured release plan. He would benefit from intervention throughout his time in custody and on release. He would benefit from an intensive program such as that offered by the Intensive Drug and Alcohol Treatment program within Corrective Services. He would benefit from the compulsory drug treatment program operated by Community Corrections. Not for the first time, I note that those who commit their offences in the Illawarra area do not have access to that excellent program.

21. I suspect, although it is a matter for the State Parole Authority, that he will need graduated release into the community. Hopefully there will be available to him residential rehabilitation centres, as Ms Brann says "not located on the south coast", for he will need intensive case management on release. All of Ms Brann’s recommendations are sensible and justify a finding of special circumstances.

22. The circumstances that the offender has been raised in do here mitigate sentence because "his moral culpability is likely to be less than those whose formative years have not been so marred": Bugmy at [40]. That background leaves a mark, which does not diminish over time.

23. I also have to take into account the sentences I imposed for related matters, Gualdi and Lukey. I have re-read my remarks in those matters this morning. Like must be compared with like. This principal, known as parity, is a classic example of the need to ensure equal justice: Green v The Queen (2011) 244 CLR 462. Gualdi was sentenced for his role in the offences of 14 November with a starting point of four and a half years on the basis he was young, immature and never had a chance to learn from appropriate role models in his community. He, too, had effectively been in custody since he was a young boy. He had little capacity to make good and sound decisions. His offending was of a different nature and order. Burns was not the armed robber but an accessory but Burns bears responsibility for the police pursuit.

24. It is a sad and tragic fact that Lukey had a similar background. Only one of the matters corresponds with each co-offender; that is count 2, so far as Lukey is concerned and count 4 so far as Burns is concerned; although Lukey was charged with a more serious offence which carries a higher maximum and a standard non parole period. But their criminality and background appears so similar that parity demands the same penalty be imposed for that offence. I said when I sentenced Gualdi; That when dealing with young offenders two important principles have emerged in sentencing practice; I referred to Simpson J in JM v R [2012] NSWCCA 83. One principle is to ensure that young people are given appropriate guidance and if possible to allow this, considerations of punishment and general deterrence should be put aside in favour of individualised treatment. The second principle is that for serious offences the protective aspects of the Court have to operate.

25. Deterrence and retribution do not necessarily cease because persons in their late teens or as young adults commit grave crimes. The principles underpinning the practise of recognition of the immaturity of youth do not vary with the nature of the crime. Here I am prepared to find Burns immaturity is one of the contributing factors to his offending. The reasons for a sentencing Judge making allowance for immaturity was explained in the New Zealand case of Slade v The Queen [2005] NZ CA 19, which was followed by Kirby J in R v Elliott and Blessington [2006] NSWCCA 305 at [127]:

"Adolescents' decision making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others."

58. Although he is no longer an adolescent, all those principles seem to apply given Burns impaired development. I also commented when I sentenced both other young men that it appears that harsher prison conditions and the risk of gaol do not discourage offending, something that was made perfectly obvious in this case. The risk of apprehension given the CCTV coverage or from leaving DNA at crime scenes were ignored by this offender: he knew he would be caught. Experience of imprisonment, however, can exert a crime producing effect. Gaols are criminal learning environments. They also make it harder to get a job when you are released. As a way of addressing the causes of crime and the causes of offending, gaols are ineffective.

59. Young people are particularly vulnerable in goal, they are particularly vulnerable to hanging out with other criminals and that vulnerability is shown by the history of this matter. It is also tragic that there are still continuing discipline matters while in custody.

60. Protection of the community sometimes requires an offender be removed from it but Burns must be returned to the community and he should not come out worse than when he went in. It seems to be, from all the studies I have read, that strategies which are designed to equip a person to lead a normal community life and to provide support and monitoring on release will be more effective if applied in the community, particularly where, as here, there is a significant risk of institutionalisation.

61. All these reasons justify a significant finding of special circumstances: the need for rehabilitation in the community, a staged release program, helping to adjust to normal community life, the risk of institutionalisation and the need to take into account the impact of accumulation of sentences. However, I am also mindful of the requirement that the minimum period for which the offender should be imprisoned must properly reflect the gravity of his offences and other purposes of sentencing: Simpson [2011] NSWCCA 534; (2001) 53 NSWLR 704. The community clearly expects judges to impose significant sentences when a number of individuals and the community are impacted as they were by this offender.

62. I have to take into account not just the objective factors but the personal case made for Burns. He, I am sure, now realises his actions have consequences. I am sure that many of his victims would say "Well just give him a retributive and harsh punishment" but Burns was, as were Lukey and Gualdi, too young, too immature and has too much life ahead of him to simply lock him away forever. If he is released without support, if he is not given that support, then community will suffer. Community protection, as Ms Doosey points out in her written submissions, is the ultimate aim of any sentencing exercise. Deterrence by the threat of harsh penalty did not deter this offender. It may deter others, I suppose.

63. There is a need to remove the offender from the community for a period but he is young. If he does what he says in his letter then he may change. There is scope for a period of his sentence to be spent in a residential facility. There is a risk that too long in gaol may make things worse but, he must be held accountable and what he did must be denounced. As I said earlier, if we just added it all up all the sentences he would be an old man before he is released.

64. The court must, by the severity of the total sentence, and those indicated impose penalties that recognise the harm done to each victim and the community. The victims of this crime should not be forgotten. Each is in need of, and deserving of, protection. Each is in need of and deserving of vindication. There is also a need for sentencing judges to express the community's disapproval of the offending.

65. There will be an aggregate sentence. For each of the matters I have allowed 25% reduction to recognise the utilitarian value of the early guilty pleas. The early guilty pleas also have other importance to my synthesis of necessary matters including Burns’ acceptance of responsibility. I have taken care that the process of accumulation does not erode the benefits of his guilty pleas.

66. I have to indicate the sentences for each matter. There are 16 counts, I have numbered the counts in accordance with the Crown facts but I have also put in the sequence numbers because unfortunately the agreed facts do not match the JusticeLink sequence.

Count 1, receive property, sequence 31, I indicate a sentence of one year and one month.

Count 2, receive property, sequence 33, I indicate a sentence of one year, one month.

Count 3, dishonestly obtain property by deception, sequence 5, I indicate a sentence of three months.

Count 4, aggravated break enter and steal that relates to Lukey, I indicate a sentence of one year and six months.

Count 5, dishonestly obtain property, sequence 9, I indicate a sentence of three months.

Count 6, dishonestly obtain property by deception, sequence 12, I indicate a sentence of three months.

Count 7, sequence 13, dishonestly obtain property, I indicate a sentence of three months.

Count 8, dishonestly obtain property, I indicate a sentence of three months.

Count 9, which is sequence 25, aggravated break and enter, I take into account matters on the Form 1. As it carries a standard non-parole period, I indicate a sentence of two years, seven months with a non-parole period of one year, seven months.

Count 10, sequence 26, another aggravated break enter and steal with matters on the Form 1, I indicate a sentence of two years, seven months with a non-parole period of one year, seven months.

Count 11, sequence 27, another aggravated break enter and steal which does not have a Form 1, I indicate a sentence of two years and three months with a non-parole period of one year and four months.

Count 12, sequence 29, break and enter, I indicate a sentence of one year and six months.

Count 13, sequence 30, another aggravated break enter and steal with matters on the Form 1, I indicate a sentence of two years, seven months with a period of one year, seven months.

Count 14, sequence 3 of H65795923, accessory after the fact, armed robbery, I indicate a sentence of one year and ten months.

s166 certificate matter, sequence 5 of H65795923,drive conveyance, I indicate a sentence of nine months.

Count 16, sequence 4 of H65795923the police pursuit, I indicate a sentence of one year and six months, disqualification of driving for two years, the automatic period. That period of disqualification will commence when you are released from custody. If you drive while disqualified that will be a breach of any parole that you might have.

67. I have taken into account the matters on the Form 1s. Can you please stand, Mr Burns?

68. There will be an aggregate sentence in this matter of seven years imprisonment. There will be a non-parole period of four years and two months. The sentence will commence on 14 March 2018 and expire on 13 May 2022. The balance of the sentence, two years and ten months, will commence on the expiration of the non-parole period; that will be from 14 May 2022 to 13 March 2025. I take into account the plea of guilty. The indicative sentences reflect the finding of special circumstances. I have considered, as I noted, accumulation, concurrency and totality. The start date is four months after he went back into custody.

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Amendments

09 May 2019 - Para 47 - typo - last line. 'became' should read 'came'

Decision last updated: 09 May 2019