R v Burton
[2004] VSCA 248
•9 December 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 342 of 2003
| THE QUEEN |
| v. |
| BARRY JAMES BURTON |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 December 2004 | |
DATE OF JUDGMENT: | 9 December 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 248 | |
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Criminal Law - Sentencing - Eight counts charged by five presentments, including intentionally causing serious injury, recklessly causing serious injury and aggravated burglary - Total effective sentence of 12½ years with minimum term of 9 years not manifestly excessive - Cumulation orders did not breach totality principle - Finding of "exceptional circumstances" for purposes of s.16(3B) of Sentencing Act 1991 not open but no miscarriage of justice - Parity - Difference between the sentences imposed on appellant and co-offender for aggravated burglary rationally explicable - Appeal dismissed - Sentencing Act 1991, s.16(3B)
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr T. Kassimatis | Leanne Warren & Associates |
WINNEKE, P.:
I will invite Chernov, J.A. to give the first judgment in this appeal.
CHERNOV, J.A.:
On 20 November 2003 the appellant, Barry James Burton, who is now aged 38 years, was sentenced by a judge of the County Court at Melbourne to a total effective sentence of 12 years and six months' imprisonment, having pleaded guilty to the following offences: causing serious injury recklessly, causing serious injury intentionally, causing injury intentionally, aggravated burglary, possession of a drug of dependence (amphetamine), robbery and theft (two counts). The learned sentencing judge ordered that the appellant serve a minimum term of nine years' imprisonment before becoming eligible for parole and made other orders. The appellant admitted 44 convictions from 15 court appearances between April 1985 and 1997. They included, as his Honour noted in his sentencing remarks, a conviction for causing injury recklessly, four convictions for armed robbery and 22 convictions relating to dishonesty and theft, including seven counts of burglary.
By notice filed on 2 December 2003 the appellant sought leave to appeal against the sentence imposed on the ground that it is manifestly excessive. The application for leave pursuant to s.582 of the Crimes Act 1958 came on for hearing before a judge of this Court on 13 August 2004. Counsel for the appellant told his Honour that he sought leave to argue five substitute grounds in place of the one referred to earlier and that, in due course, an application to amend would be made to the Registrar. In the event, argument was heard on the proposed substituted grounds and, on that day, leave to appeal was granted on the limited basis that substituted grounds 1, 4 and 5 would be argued. His Honour considered that grounds 2 and 3 were not reasonably arguable on appeal.
Application to substitute the proposed grounds for those in the notice was subsequently made in the usual way and on 31 August 2004 the Registrar granted
the application. Notably, leave was granted to substitute not only proposed grounds 1, 4 and 5 for those in the original notice, but also proposed grounds 2 and 3 which, as I have mentioned, had been found by his Honour to be not reasonably arguable. I will discuss the substituted grounds that were pursued later, but I will first describe briefly the circumstances of the offending.
Circumstances of offending
Since the counts to which the appellant pleaded guilty were contained in five separate presentments, and since each presentment related to a discrete set of offending conduct, it is necessary to summarise the relevant events by reference to each of the presentments. Although I will come back to the matter later, it is convenient to mention now that the offences the subject of counts 5 and 6 on the first presentment were committed by the appellant when he was on parole (which expired not long thereafter).
Presentment C0202645.WM ("the first presentment)
The first presentment related to offences committed by the appellant (and his brother, Roddy) in the early hours of 3 November 2001 in the car park of the Waltzing Matilda Hotel in Springvale. The first presentment originally contained five counts, then count 6 was added. Upon the appellant being re-arraigned on 5 March 2003, he was acquitted by direction of counts 1 to 4 and pleaded guilty to counts 5 and 6. The plea of guilty coincided with the appellant being informed that Donna Taylor, to whom I will refer again later, would give evidence against him. As such, we are now concerned only with count 5 - causing serious injury recklessly - and count 6 - intentionally causing injury. The offending conduct took place in the following circumstances. The appellant, his brother Roddy and their friend, Andrew Cheary ("Cheary") engaged in a drinking session, which commenced some time during 2 November 2001 and continued into the early hours of the following day. They ended up at the Waltzing Matilda Hotel at approximately 4 a.m. on 3 November 2001, where they encountered Ian and Luke O'Keefe, who were brothers, and their respective girlfriends. An argument broke out between Cheary and Ian O'Keefe and later, when they were in the car park, Ian O'Keefe brandished a car fire extinguisher at Cheary. A little later, the appellant threatened Luke O'Keefe with a knife, also while they were in the car park.
Luke O'Keefe told his brother that he had been threatened by the appellant and the two men then approached the appellant, and Ian O'Keefe and the appellant started to argue. The appellant produced a knife and a scuffle broke out between the two, during which the appellant stabbed Ian O'Keefe in the right side of his upper back. The two then fell to the ground and continued to struggle, and Ian O'Keefe was stabbed again, this time in the right forearm. This was the subject of count 6. When Luke O'Keefe came to his brother's aid and tried to pull the appellant off him by the back of his shirt, the appellant swung his left arm out and stabbed Luke in the stomach. This conduct formed the basis of count 5. During the appellant's attack on Ian O'Keefe, Roddy Burton got out of the vehicle and began to kick Ian O'Keefe in the head and body. Later, Ian O'Keefe was treated for two stab wounds, which required stitching. He lost a significant amount of blood and experienced pain and discomfort. Luke O'Keefe was more seriously injured. The wound to his abdomen required surgery and he was hospitalised for eight days.
Roddy Burton eventually pleaded guilty to affray, for which the maximum custodial penalty is five years' imprisonment, and he was sentenced, on 24 September 2003, to 18 months' imprisonment, wholly suspended for a period of three years. His Honour sentenced the appellant to a period of three years' imprisonment on count 5 and two years' imprisonment on count 6 and directed that one year of the sentence imposed in respect of count 6 be served cumulatively with that imposed on count 5. Of the notional total effective sentence of four years' imprisonment on counts 5 and 6, his Honour cumulated two years on the total effective sentence of 7½ years' imprisonment imposed in respect of counts 1 and 2 on the second presentment, to which I now turn.
Presentment C0202645.UR2 ("the second presentment")
The second presentment related to the offences of aggravated burglary and intentionally causing serious injury committed by the appellant and his co-offender, Donna Taylor, on the evening of 10 February 2002. At Taylor's suggestion, she and the appellant, both of whom had been drinking, went to the house of Ubaldo Rech, who was the father of one of Taylor's four children, with the intention of stealing money and alcohol. In preparation for the offence, the appellant hid in his clothing a large metal spanner. At approximately 9.30 p.m., the pair entered the victim's property, where the appellant took a knife from the garden. The prosecutor told his Honour that, once inside the house, the appellant donned a balaclava and placed socks over his hands. In his sentencing remarks, however, his Honour noted that the appellant put on the balaclava just before entering the victim's house and sentenced him on that basis. When the appellant and Taylor entered the house, Rech was asleep in his bed. The appellant went into his bedroom, while Taylor remained in the living room. He shouted "Where's the money?", striking the victim's head several times with the spanner. At one point, the appellant left the bedroom and came into the living room, shouting "Where's the money?" before returning to the bedroom and continuing to strike the victim's head. The appellant then took from the bedroom the victim's wallet, which contained $900, and two cheque books. The attack on Rech lasted approximately twenty minutes and, as a result, he suffered a fractured skull, a fractured frontal sinus, multiple lacerations, bruising and swelling. He also suffered from significantly depressed facial wounds, blood in the interior of his left eye and a fractured right wrist. Two days after these offences, the appellant entered the Rowville branch of the ANZ Bank and unsuccessfully attempted to cash two cheques from Rech's cheque book.
The appellant eventually pleaded guilty to both counts alleged in the second presentment, and on each count he was sentenced to a period of seven years and six months' imprisonment to be served wholly concurrently.
Donna Taylor, who had also pleaded guilty to aggravated burglary and assisted the authorities in their case against the appellant, at some risk to her as I will mention later, was sentenced to two years' imprisonment wholly suspended for a period of three years.
Presentment C0202645.PP ("the third presentment")
The third presentment contained two counts: theft of a motor vehicle (count 1) and possession of amphetamines (count 2). This offending conduct occurred in the following circumstances. At approximately 5.20 p.m. on 18 February 2002, the appellant and Taylor drove to a shopping centre in Keysborough in a white Holden Commodore (which did not belong to the appellant). He parked the car and Taylor then went into the shopping complex. The appellant then approached another, locked, white Holden Commodore that was also in the car park. He managed to open one of its doors and then drove it to the nearby Keysborough Hotel, where he parked it in the car park. At approximately 6 p.m., he returned to the shopping centre to rejoin Taylor and the pair left in the original white Holden Commodore. They drove to the Keysborough Hotel where they took the stolen car and returned in it to Taylor's house. It is unclear precisely what happened to the stolen vehicle before it was found again on 23 February 2002, but it seems that by then it was a "write-off". The theft of the car, as I have said, was the subject of count 1. When the appellant was arrested on 13 March 2002, in relation to each of the offences now under consideration, a quantity of a drug of dependence (amphetamine) was found in his possession and that constituted the basis of count 2 of the third presentment. His Honour sentenced the appellant on count 1 to two years' imprisonment and imposed a fine of $200 in respect of count 2. The sentencing judge directed that one year of the sentence imposed on count 1 be served cumulatively on the notional total effective sentence imposed in respect of the offending conduct charged by the second presentment.
Presentment C0202645.DB.2 ("the fourth presentment")
This presentment alleged one count, namely, theft on 9 March 2002 of two electrical drills from a Bunnings store. The circumstances in which this occurred were as follows. On 9 March 2002, the appellant, Taylor and a man called "Allen" drove to the Bunnings Warehouse in Springvale in the appellant's vehicle for the purpose of stealing from that store. The appellant waited in the car while Taylor and Allen went inside and, on two occasions, stole electric drills, which they then took to the appellant's car. The appellant then drove them to Springvale Cash Converters. Once again, the appellant did not leave the vehicle whilst Allen and Taylor entered the store with the stolen drills. They sought to exchange them for money, but the store manager became suspicious and called the police. The police seized the stolen items, but, after questioning Allen and Taylor, allowed them to leave. The appellant pleaded guilty to the theft of two drills and was sentenced in respect of that charge to twelve months' imprisonment. His Honour directed that six months of that term be served cumulatively with the custodial sentence of 7½ years' imprisonment imposed in relation to both counts on the second presentment. A few days earlier, the same judge sentenced Donna Taylor in respect of a like offence to a period of twelve months' imprisonment, which he wholly suspended for a period of three years.
Presentment C0202645.QT2 ("the fifth presentment")
One count of robbery was alleged in the fifth presentment, which arose in the following circumstances. On 10 March 2002, the appellant and Taylor agreed to rob one Quoc Tran ("Tran"), a supplier of drugs to Taylor, of money and heroin. To this end, Taylor telephoned Tran on that day and lured him to a location chosen by her and the appellant on the pretence that she wanted to buy three caps of heroin from him. When the appellant and Taylor arrived at the meeting place in Taylor's car, Tran was sitting in his car waiting for Taylor. The appellant got out of the vehicle, opened the passenger side door of Tran's car and seated himself beside him. He then slapped Tran across the face and demanded that he be given heroin. He threatened to kill him if he did not comply. The victim gave him three caps of heroin and the appellant also took from him his wallet, containing twenty dollars, and a red purse, containing a small amount of Vietnamese currency. The appellant and Taylor then got back into their car and drove away. The appellant pleaded guilty to the count in the fifth presentment and was sentenced to three years' imprisonment on this count, 18 months of which was directed to be served cumulatively with the sentence of
7½ years' imprisonment imposed on counts 1 and 2 of the second presentment. Donna Taylor was sentenced in respect of that offending conduct to a period of 18 months' imprisonment, wholly suspended for three years.
I will now turn to the proposed grounds of appeal and the arguments in support of them.
Grounds 3 and 4
Mr Kassimatis, who appeared before us for the appellant, first argued grounds 3 and 4. Under cover of these grounds counsel submitted, as his primary argument, that his Honour's orders for cumulation as between the sentences applicable to the respective presentments offended the principle of totality. Counsel said, correctly, I think, that whether the cumulation was unduly excessive does not admit of much argument. He pointed out that his Honour cumulated one-half of each set of the relevant sentences on the base sentence so as to produce a total effective sentence of 12 years and 6 months' imprisonment with a non-parole period of 9 years, which, counsel said, was manifestly excessive and breached the principle of totality.
It is plain enough, I think, that a substantial measure of cumulation was required in this case to mark out properly the criminality of the appellant's course of offending over the four months between the episodes at the Waltzing Matilda Hotel in November 2001 and his arrest in March 2002. As his Honour recognised, each presentment charged offences forming part of a discrete set of criminal conduct in respect of different victims. Given the appellant's long criminal history and the serious nature of the offending conduct, both specific and general deterrence were important sentencing considerations, as were the protection of the community and the expression of denunciation by the court of such conduct. In his orders for cumulation, his Honour followed, I think, the directions as to cumulation and totality respectively given by Ormiston, J.A. in D.P.P. v. Grabovac[1] and the High Court[2] in Mill v. The Queen[3]. The learned sentencing judge identified the specific events which gave rise to specific groups of counts and, by his cumulation orders, avoided the appearance that the appellant could commit serious offences after the first crime with effective impunity. His Honour also plainly reviewed the aggregate sentence to ensure that it was "just and appropriate".
[1][1998] 1 V.R. 664 at 676.
[2]Wilson, Deane, Dawson, Toohey and Gaudron, JJ.
[3](1998) 166 C.L.R. 59 at 63.
Moreover, I consider that, in the circumstances, the total effective sentence and the non-parole period are not crushing or manifestly excessive. The offences that were committed by the appellant were very serious, as the maximum custodial sentences prescribed for them by Parliament clearly demonstrate. The appellant's offending conduct showed a complete disregard by him of the law. His preparedness to use weapons to inflict serious physical harm to others, either because of his feelings of aggression towards them or in order to obtain material gain, or both, is a significant aggravating feature of his offending conduct in respect of the offences charged by the first and second presentments. In respect of those counts, it was fortunate that the victims of the appellant's vicious assaults did not suffer greater injury or lose their lives. Notwithstanding the mitigating factors that operate in the appellant's favour, which are set out comprehensively in his Honour's sentencing remarks and which I will not repeat here, I cannot accept that, given the aggravating circumstances of the offending, which occurred over a considerable period, and involving, as it did, a degree of premeditation, and having regard to the appellant's criminal history and the applicable sentencing principles, the total effective sentence is crushing or manifestly excessive. I am of the same view in relation to the non-parole period, particularly bearing in mind that the appellant's prospects of rehabilitation are anything but sound.
It was next said under cover of these grounds that his Honour, having found that "exceptional circumstances" existed for the purposes of s.16(3B) of the Sentencing Act 1991 ("the Act"), erred in not directing that the appellant not serve the sentences on the first presentment cumulatively on the unexpired portion of the sentence in respect of which he was paroled. I have already mentioned that the appellant committed the offences at the Waltzing Matilda Hotel while he was on parole. In those circumstances, by reason of the operation of s.16(3B) of the Act, any sentence imposed in respect of those offences was required to be served cumulatively on the earlier unexpired sentence, unless the court ordered otherwise because of the existence of "exceptional circumstances". It was said for the appellant that his Honour misunderstood the effect of s.16(3B), in that, instead of ordering "otherwise" by reason of his finding of "exceptional circumstances", he relied on this finding to cumulate partially the notional total effective sentence imposed on counts 1 and 2 on the base sentence. Ordinarily, one would expect that a finding of "exceptional circumstances", if made for the purposes of s.16(3B) of the Act, as appears to have been the case here, would be followed by an order abrogating, in whole or part, the requirement for cumulation imposed by the sub-section. Instead, as I have noted, his Honour took the finding into account in the appellant's favour in determining what part of the sentences imposed on counts 1 and 2 should be cumulated on the base sentence. Be that as it may, I consider that the error, if that is what it was, was immaterial to the sentencing disposition and that no miscarriage of justice has occurred by reason of it. First, his Honour's conclusion that "exceptional circumstances" existed for the purpose of s.16(3B) of the Act was made on a false premise, one which was suggested to his Honour by the appellant's counsel. His Honour accepted counsel's submission that the mere fact that the appellant was the subject of five presentments amounted to "exceptional circumstances". In my view, such a conclusion was not open to him. The provision is concerned with sentences that are imposed in respect of offences committed during the period of the offender's parole, here, counts 5 and 6 on the first presentment. The provision requires that those sentences be served on the earlier, unserved sentence that the offender may be required to serve on cancellation of the parole order, unless the court orders otherwise because of the existence of "exceptional circumstances". In my view, the fact that the appellant was presented on five presentments, as distinct from a lesser number, cannot constitute "exceptional circumstances" for the purposes of the sub-section. It cannot be that if all the charges were the subject of one presentment there would be no "exceptional circumstances", yet such circumstances arise if the charges are made the subject of five presentments. In any event, I doubt that the mere fact that the appellant engaged in criminal conduct subsequent to the offending to which s.16(3B) relates, and which is the subject of subsequent charges, could amount to "exceptional circumstances". Thus, as I have said, it was not open to his Honour to find, on the basis stated by him, that "exceptional circumstances" existed for the purposes of s.16(3B) of the Act. I add for completeness that I consider that the material before us does not otherwise disclose any other circumstances which could have been characterised by his Honour as "exceptional" for the purposes of s.16(3B) of the Act. It follows that there was no basis on which his Honour could have properly ordered "otherwise" for the purposes of that provision. In any event, it is clear enough that, in determining the period of cumulation, his Honour took into account in the appellant's favour the fact that the appellant was the subject of five presentments. Therefore, as I have said, no miscarriage of justice occurred by reason of the claimed error.
Consequently, I would reject grounds 3 and 4.
Grounds 1 and 2
Under cover of these grounds it was contended that the individual sentences imposed on count 1 of the second presentment and on count 1 of the third presentment are manifestly excessive. It is also asserted that the sentence imposed on count 1 of the second presentment offends the principle of parity. In my view, these grounds are without merit.
In support of the claim that the sentence of seven years and six months' imprisonment in respect of the count of aggravated burglary is manifestly excessive, Mr Kassimatis effectively submitted that the sentence was driven by the learned sentencing judge giving undue weight to the appellant's infliction of serious injury on his victim in the course of the criminal enterprise as well as, counsel said, his Honour incorrectly finding that the appellant used a disguise in the commission of the offence. In my view, however, the sentence is not plainly wrong.
The circumstances surrounding the offence of aggravated burglary were very serious. They involved the appellant entering the victim's home at night, armed with weapons, knowing that the victim was home in bed. Thereafter, and in furtherance of the purpose underlying the aggravated burglary, namely, stealing, the appellant went to the victim's bedroom and yelled at him to disclose the location of his money. Whether the appellant covered his face with the balaclava immediately before entry or, as may be assumed for present purposes, immediately after it, was immaterial to the sentencing disposition. Moreover, the sentence imposed for the offence of aggravated burglary was ordered to be served concurrently with that imposed on Count 2, thus making a total sentence of 7½ years' imprisonment. I consider that this sentence was not unduly excessive given the circumstances of the offending conduct and that the sentence in relation to count 1 on the second presentment is clearly within the range of sentences that was reasonably available.
I also consider that the sentence imposed for the theft of the motor car was not manifestly excessive. As Mr Hillman for the respondent pointed out, it was a blatant theft of a vehicle from a public car park and when the vehicle was recovered it was a "write-off". In the circumstances, the principles of specific and general deterrence were very important considerations in the sentencing disposition. In my view, it cannot be sensibly said that the impugned sentence is plainly outside the relevant range.
I also consider that the difference between the relevant sentences imposed on the appellant and Taylor can be rationally explained so that an objective, reasonable person would have no justified sense of grievance in respect of the disparity in their
sentences. As Mr Hillman pointed out, Taylor was less culpable than the appellant in the offending in respect of the second presentment. It was planned by them that she would enter the house while the appellant stayed outside, but instead, he followed her and inflicted the unplanned assault on the victim, which caused Taylor to be greatly upset. Moreover, she not only pleaded guilty at an early stage, but she agreed to co-operate with the authorities, including giving evidence against the appellant, notwithstanding the risk of possible physical retribution from him. Importantly, the same sentencing judge concluded that she showed genuine remorse for her offending and had sound prospects of rehabilitation. By way of contrast, the offences that were the subject of the second presentment were initially denied by the appellant and he pleaded guilty to those charges only after it became clear that Taylor would give evidence against him. The same applied, as I have said, in relation to the appellant's plea of guilty in respect of the first presentment.
In the circumstances, I would dismiss the appeal.
WINNEKE, P.:
For the reasons given by Chernov, J.A., I agree that the appeal should be dismissed.
CHARLES, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the appeal is dismissed.
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