R v Burns; R v Gerstinmeier
[2014] ACTSC 215
•25 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Burns; R v Gerstinmeier |
Citation: | [2014] ACTSC 215 |
Hearing Date: | 11 July 2014 |
DecisionDate: | 25 July 2014 |
Before: | Penfold J |
Decision: | Adon Burns: see [25] to [29] below. Clayton Gerstinmeier: see [30] to [34] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – co-offenders to be sentenced for assaults occasioning actual bodily harm – one offender also to be sentenced for escaping lawful arrest – both offenders on conditional liberty at time of offences – one offender already serving other sentences but eligible to apply for parole – one offender has spent 220 days in custody on current offences interspersed with periods serving sentences in NSW – totality – sentences imposed making both offenders immediately eligible to apply for parole. |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 26, 160 |
Parties: | The Crown (Crown) Adon John Burns (First Offender) Clayton Gerstinmeier (Second Offender) |
Representation: | Counsel Mr C Wanigaratne (Crown) Mr T Quilter (First Offender) Mr R Livingston (Second Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Limited (First Offender) Legal Aid ACT (Second Offender) | |
File Numbers: | SCC 48 of 2012; SCC 82 of 2012; SCC 130 of 2013 |
Adon Burns and Clayton Gerstinmeier have both pleaded guilty to assault occasioning actual bodily harm, such pleas having been accepted in satisfaction of original charges of attempted aggravated robbery. Mr Burns has also pleaded guilty to escaping lawful arrest, and an offence of assault is to be taken into account in sentencing Mr Burns for that offence of escaping lawful arrest.
The assault occasioning actual bodily harm and escape offences arise under ss 24 and 160 respectively of the Crimes Act 1900 (ACT) and each carries a maximum penalty including five years imprisonment. The assault offence is created by s 26 of the Crimes Act, and carries a maximum penalty of two years imprisonment.
The offences were committed on 19 January 2010. After an afternoon and evening of drinking alcohol, Mr Burns and Mr Gerstinmeier assaulted a neighbour of Mr Gerstinmeier’s girlfriend as he walked towards the bus stop in Woden at about 10.30 pm. The assault included head-butting by Mr Burns. The victim received injuries described in the hospital report as bruising over his left eye socket, a small haemorrhage in his left eye, and a broken nose. Photographs taken of the victim shortly after the assault show his face covered in blood.
Police had already been called to the area where the victim lived to deal with a disturbance before the victim arrived at the Woden Police Station to report the assault. Police had observed Mr Burns with blood on his clothing. A police officer formed the view that he needed to arrest Mr Burns, who did not normally reside in the ACT, and formally placed him under arrest. At that point Mr Burns turned and ran away, pursued by two police officers. He tripped, and was caught and restrained.
The scheduled offence was committed after Mr Burns had been found not fit for interview and was taken to Canberra Hospital for a mental health assessment. While he was being admitted to the hospital he turned and spat over his right shoulder towards the police officer, who fortunately anticipated Mr Burns’ actions and moved to avoid contact with the spittle. On assessment, Mr Burns was found to be fit to remain in custody.
Mr Burns was charged with the attempted aggravated robbery offence in 2010 and released on bail after 29 days in custody. He did not comply with bail conditions and a warrant was issued, but it appears not to have been executed before Mr Burns was again involved with the NSW justice system and sentenced to imprisonment, on 14 September 2010 for a variety of offences, including escape offences. On 31 January 2012 he was extradited to the ACT and on 1 April 2012, having spent another 61 days in ACT custody, he was bailed to attend a drug and alcohol rehabilitation program. However, he left that program early and remained at liberty until 31 July 2013 when, his NSW parole order having been revoked on 10 May 2012 for non-compliance, he was returned to prison in NSW. He remained there until 17 March 2014. Since that date he has been in custody in the ACT in respect of the current offences. In total he has spent roughly 220 days in ACT custody in relation to these offences.
At the time of the offence for which I am to sentence him, Mr Gerstinmeier appears to have been on parole under an earlier ACT sentence of five years for an offence of aggravated robbery committed in December 2006. He was released on 9 April 2009 with roughly three years left to be served on parole, but breach action was initiated on 1 September 2010, apparently for breach of parole conditions rather than in relation to the current offence.
For reasons that did not become clear to me, Mr Gerstinmeier was not initially charged in respect of the current offence, but was only summonsed to appear in relation to the incident in March or April 2011. He says he did not receive the summons, and knew nothing about the charge until he was arrested in September 2011, apparently in relation to an April 2010 assault occasioning actual bodily harm on his then partner, and from September 2011 he served a NSW sentence for that assault, being released at the end of an 18‑month non-parole period on 18 March 2013.
Mr Gerstinmeier’s earlier ACT parole had finally been cancelled on 7 February 2013. Mr Gerstinmeier said that he had tried to get the current ACT matter dealt with while he was in custody in NSW, but this had not been successful. When he was released on NSW parole in March 2013, he was immediately re-arrested and extradited to the ACT. He was then granted bail, which lasted for about two weeks, before he was re-arrested on a warrant issued by the Sentence Administration Board about 12 months earlier.
10. Since 9 April 2013, then, Mr Gerstinmeier has been serving the remainder of the sentence from which he was released on parole in 2009. He has applied again for parole, and an inquiry into that application is scheduled for 5 August 2014.
11. The DPP concedes that Mr Gerstinmeier has been in custody on the current matter continuously since July 2013 (apparently 25 July 2013), at which point he was remanded in custody in relation to this offence while he was already serving the sentences for the December 2006 ACT offences.
Mr Burns and Mr Gerstinmeier both pleaded guilty to the current offences shortly before the date in March 2014 listed for their trial on the more serious offence of attempted aggravated robbery.
13. The assault on the victim in this case appears to have been entirely unprovoked and explained only by the intoxication of the two offenders. The injuries sustained were at the higher end of the range of injuries that would generally be charged as actual bodily harm.
The offences were aggravated by the fact that both men were, in effect, on conditional liberty at the time of the incident; Mr Gerstinmeier was on parole, while Mr Burns seems to have been subject to an unexecuted warrant in NSW over a drive while disqualified charge for which he was later sentenced to 18 months imprisonment.
15. Mr Burns, who is now 28, has a lengthy criminal history in NSW showing offences including assaults, dishonesty offences including car theft offences, property damage, stalking, escape offences, and numerous traffic offences. However, his counsel pointed out that although he has had roughly 12 months at liberty since July 2010 (albeit made up of several shorter periods), he has not offended since then.
16. Mr Gerstinmeier, who is also 28, has a criminal history in both NSW and the ACT. His ACT offending consisted of two burglaries, three thefts, and a damage property offence, all in 2006, as well as the aggravated robbery and car theft offences for which he was sentenced to five years imprisonment in 2007. In NSW there have been assaults, dishonesty offences and stalking offences.
17. There is no basis on which I could find that one or other of the offenders took the lead in instigating these offences, but I do note that one of the head butts by Mr Burns was identified as causing injury to the victim’s nose, and accordingly I regard his offence as slightly more serious.
18. Counsel noted that Mr Burns was assessed as unfit for interview, apparently due to his intoxication, when he was arrested shortly after the assault. The Pre-Sentence Report author reported that Mr Burns accepted responsibility for the assault and "appeared to demonstrate empathy for the victim”.
19. In oral evidence Mr Gerstinmeier accepted responsibility for the assault and conceded that it was unprovoked. He said he was stupid and drunk and that the victim did not deserve to be assaulted, and he expressed his regret.
20. The Pre-Sentence Report provides the following information about Mr Burns’ background and the author’s assessment of him:
Mr Burns stated he was born in Goulbourn, New South Wales, and was under the care of the Department of Community Services intermittently from the age of nine months until 18 years. Mr Burns described his upbringing as dysfunctional, a result of his parents’ issues with substance abuse and related criminal activities.
Mr Burns stated his father committed suicide in 2009, the same year in which his mother passed away from a terminal illness. Mr Burns stated he did not share ongoing positive relationships with his two sisters, who resided interstate.
[Mr Burns] stated he had two children, aged 10 and six years respectively with his former partners. Mr Burns expressed a desire to re-establish contact with his children, who resided with their respective mothers, upon release. [Mr Burns] advised both relationships ended due to his substance abuse issues and offending behaviour. ...
Mr Burns stated he had intentions to reside in a local halfway house upon release from the Alexander Maconochie Centre (AMC). His case manager at the AMC confirmed the offender has been placed on a waiting list for temporary accommodation. The case manager also stated Mr Burns would be eligible for permanent accommodation through Habitat Personnel, an organisation with whom Mr Burns had regular contact with.
Mr Burns reported he left a special school in Sydney in Year 6 due to learning difficulties and disciplinary problems. Apart from short courses in custody, Mr Burns had no further formal studies since he left school at the age of 11 years.
[Mr Burns] reported he was employed for brief periods of time as a labourer in an abattoir and a roofing company in 2005 and 2012 respectively. Service records indicated Mr Burns was a participant in the Care and Land Management program in the AMC, where he was assigned gardening responsibilities.
...
Mr Burns reported he was involved with a negative peer group from an early age and acknowledged the need to re-assess his friendships if he was to address his offending behaviour.
The offender reported he binged on alcohol for a four month period in 2010. During that period, Mr Burns estimated he consumed 750mls of rum or 18 stubbies of beer daily, however, he stated he had not consumed alcohol since late 2010.
[Mr Burns] stated he had struggled with illicit drugs since he commenced cannabis, amphetamines, methamphetamines and heroin use at the age of 14 years. He stated until he was arrested in July 2013, he smoked an unspecified amount of cannabis on a daily basis and also used amphetamines and methamphetamines (two points) once or twice a fortnight. Mr Burns stated he has not used heroin since 2004 and has received appropriate treatment for his dependency in the AMC. He completed short alcohol and other drugs programs while previously incarcerated.
Service records indicated a preliminary drug test conducted on 18 March 2014 was negative to illicit substances. Mr Burns’ case manager stated [Mr Burns] was on a waiting list to start the Alcohol and Drugs First Steps Program and the SMART Recovery Program.
Mr Burns stated he was an active football player and also enjoyed reading. He acknowledged that pro social activity and associations were necessary if he were to lead a pro social lifestyle in the community.
Diagnosed with a psychological condition in 2010, Mr Burns stated he had attempted suicide on two occasions following his parents’ death in 2009. He stated he had received psychological treatment for his condition since 2010 and described his current state of mind as stable as he is currently prescribed medication. ACT Health confirmed Mr Burns’ mental health history and advised that on his most recent reviews in February 2012 and March 2014, “there were no signs or symptoms indicative of serious or enduring mental illness, and he was closed from the service”.
...
Mr Burns is a 28 year old Aboriginal man, who has experienced hardship from an early age due to the dysfunctional nature of his family and has been exposed to substance abuse and associated criminal behaviour exhibited by his parents. Factors including limited education, lack of employment and finances, family disconnection, substance abuse, negative peer associations and poor attitude and orientation have all contributed to [Mr Burns’] extensive criminal history and current offending.
Mr Burns is currently assessed as being at high risk of reoffending. It is considered that if he does not address the various risk factors mentioned above with appropriate support from agencies within and outside custody, his risk of reoffending may remain high.
21. As to Mr Gerstinmeier, the Pre-Sentence Report provides this information and assessment:
Born in Kolkata India, an only child, Mr Gerstinmeier reported he left his homeland with his mother when an infant. His mother remarried soon after their arrival in Australia and subsequently had two sons now aged 23 and 12 years. He reported a close relationship with his two brothers and an amicable relationship with his stepfather. Mr Gerstinmeier reported he never knew his father and his mother took her own life in 2012, after a long illness.
Mr Gerstinmeier reported he had been estranged from his mother prior to her death and still harboured mixed feelings of regret and anger towards her.
At [19] Mr Gerstinmeier commenced a relationship which lasted approximately nine years and produced a child now aged seven years. He stated the relationship ended three years ago due to a combination of domestic violence and his periods of incarceration. He added they are still in contact and relate well to one another. Mr Gerstinmeier stated a desire to be a good role model for his son. It is noted that Mr Gerstinmeier completed a parenting course on 5 June 2014, and a cognitive based therapy program on 24 June 2014.
[Mr Gerstinmeier’s] former partner confirmed the relationship had ended in 2011, although the couple remain friends and she has visited him in prison. She described Mr Gerstinmeier as a good father and she had no concerns with him visiting his son post gaol. At this stage Mr Gerstinmeier is on the waiting list for accommodation at Ainslie Village.
... A staff member from Ainslie Village, reported if Mr Gerstinmeier were to be released from custody in the next month that service would be confident of securing him accommodation.
When in the community, Mr Gerstinmeier had predominantly been employed in labouring positions. He advised that before his incarceration he worked as a removalist and was confident of again securing employment with that employer. When contacted, Mr Gerstinmeier’s former employer described him as a reliable and conscientious worker who he would rehire upon his release.
Mr Gerstinmeier disclosed previous use of Alcohol, Methamphetamines, Heroin and Cannabis. He credited peer pressure to his initial use of both Cannabis and Alcohol at age 14. He stated he used these substances on weekends with friends until the age of 17 years, when he began the use of alcohol and cannabis on a daily basis.
By age 18, Mr Gerstinmeier claimed his daily use of Alcohol and Cannabis had ceased. [He] reported he commenced experimenting with Heroin and Methamphetamine which quickly became his drugs of choice. By the age of 19, he had developed a dependency on Heroin and he was using the drug intravenously.
After a number of attempts to cease his use of Heroin, Mr Gerstinmeier reported it was the birth of his son in 2006, and his desire not to return to gaol that inspired him to cease his use on a permanent basis.
On entry into the AMC on 9 Aril 2014, Mr Gerstinmeier was subject to drug screening, with Amphetamines and Cannabis detected. Alcohol and Drug screening tools indicated Mr Gerstinmeier had a severe level of drug dependence and a high risk of Alcohol dependence which required further intervention. Mr Gerstinmeier conceded the majority of his offending behaviour occurred under the influence of Alcohol or to procure funds to purchase illicit substances.
Mr Gerstinmeier has undertaken a number of substance abuse short courses in both NSW and ACT gaols. [He] did not apply for the four month residential Alcohol and Other Drugs rehabilitation program in the [AMC]. He claimed the program would not assist him, although was unable to articulate why he believed this.
Mr Gerstinmeier reported he suffered from a mental health condition for which he is prescribed medication. He claimed he has unresolved grief issues in relation to his mother’s passing and would like to access counselling in relation to this.
A Pre Sentence Report prepared by this Service on 28 March 2007, stated that Mr Gerstinmeier had previously attempted suicide at a young age and had received counselling.
A ... report by ACT Health, dated 10 April 2014, confirmed that Mr Gerstinmeier had a past history of self-harm and had been diagnosed with a mental health condition which required prescribed medication. The report further stated Mr Gerstinmeier had been diagnosed with other medical conditions that were still being explored. A diagnosis had proved elusive due to Mr Gerstinmeier’s inconsistent attendance at medical appointments.
22. The Pre Sentence Report author’s assessment of Mr Gerstinmeier is that he:
appears to have unresolved issues in his life from grief in relation to his mother’s death and minimal familial support. There are also unclear issues in relation to substance abuse, with the majority of his past offending behaviour committed under the influence of alcohol.
...
Mr Gerstinmeier’s ... range of criminogenic risk factors, such as substance abuse, psychological issues, minimal familial support and past violent offending behaviour, contribute to him being assessed as a medium/high risk of reoffending.
23. It would be nice to think that drunken young men contemplating assaults might be deterred by the prospect of being prosecuted and sent to prison, but the efficacy of deterrence in such cases is in my view doubtful. On the other hand, that is not a reason for imposing a lesser sentence than is otherwise appropriate, and there may yet be scope for these two offenders to be personally deterred from re-offending.
24. The pleas of guilty came relatively late, in each case shortly before the listed trial. However, they were in each case a plea to a lesser offence, which was accepted in full satisfaction of the indictment, and also had some utilitarian value despite their lateness. There will be pleas of guilty discounts to take account of this.
25. Mr Burns, please stand. I record convictions on the charges of assault occasioning actual bodily harm and escaping lawful arrest. I also note the scheduled offence of assault, and I have taken it into account in sentencing for the escape offence.
26. I now sentence you to imprisonment for 19 months, reduced from 24 months for your guilty plea, for the assault occasioning actual bodily harm, and nine months reduced from 12 months for the escape offence. The escape sentence will be accumulated on the assault sentence so as to add two months, giving a total sense of 21 months imprisonment.
27. I note that you have now been in custody solely in respect of these offences for roughly 220 days over three separate periods, and that between those periods you have served significant time in prison in NSW on offences committed since the offences for which I am sentencing you.
28. Having regard to the time you have spent in custody both in respect of this offence and on other sentences since this offence was committed, your sentence will be backdated to 26 March 2013, so it will expire in five months time.
29. I set a non-parole period of 16 months, which expires today, making you immediately eligible to apply for parole. In other circumstances I might have suspended the remainder of the sentence, but your record and the Pre-Sentence Report assessment suggest to me that you need the closer supervision and support, and more immediate consequences of re-offending, that should go with a release on parole. You may sit down.
30. Mr Gerstinmeier, please stand. I record a conviction on the charge of assault occasioning actual bodily harm.
31. I now sentence you to imprisonment for 18 months, reduced from 22 months because of your plea of guilty.
32. I accept that you have notionally been in custody on this assault offence for 12 months now, but I also consider that this offence should add some time to the sentence that you are currently serving for the 2007 aggravated robbery, which will run until 8 April 2016.
33. Accordingly, the sentence for the assault will start to run on 9 July 2015 and expire on 8 June 2016, giving a new total sentence of five years and two months, which is notionally backdated to 9 April 2011 to take account of service of the original non-parole period for the 2007 sentence.
34. In setting those dates, I note that the new sentence is to run concurrently with the earlier sentence for 16 of the 18 months, and that is how I have recognised the 12 months concurrent custody.
35. The original non-parole period for the 2007 robbery sentence was two years, but I now set a new non-parole period, for the 2007 sentence and the assault sentence, of three years and three months, with a notional start date of 9 April 2011 and an actual expiry date of 8 July 2014.
36. Thus you are already eligible for parole, and this should enable your forthcoming parole hearing to go ahead in August.
37. If either of you have any particular questions about those orders, please ask the court officials or your lawyers.
38. Mr Gerstinmeier, you can sit down.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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