R v Scott Burge

[2010] NSWDC 16

CITATION:	R v Scott BURGE [2010] NSWDC 16
HEARING DATE(S):	5 February 2010
JUDGMENT DATE:	5 February 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. and referred to the Drug Court for assessment as to his suitability for a compulsory drug treatment order.
CATCHWORDS:	CRIMINAL LAW - Sentence - Robbery - Break, enter and steal - Bag Snatching - Vulnerable victims - Physical and psychological injuries
CASES CITED:	R v Ranse (Unreported) 8 August 1994
PARTIES:	The Crown Scott Anthony Burge
FILE NUMBER(S):	DC 2009/11/1077
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission

SENTENCE

1 HIS HONOUR: Scott Anthony Burge appears for sentence today after having pleaded guilty at an earlier stage to an offence of robbery. He asked that when I sentence him for that matter I take into account another serious offence, that of break, enter and steal.

2 The plea of guilty was entered at the earliest opportunity and so to reflect the utilitarian value of that plea, I will discount the sentence I would otherwise have imposed by twenty-five per cent.

3 On 9 December 2008, the offender was in something of a financial crisis. His partner had lost her job and it was entirely possible that they were about to be evicted from the place they rented. Mr Burge approached a number of agencies seeking emergency funds including Centrelink. He was unsuccessful. In those circumstances he made the decision to commit an offence in order to obtain some money. This was a seriously criminal decision. Near the Centrelink office two elderly people were walking, a sixty-nine year old woman and a seventy year old man. The offender approached them from behind, grabbed the woman’s right arm and took her purse out of her hand. She, not surprisingly, tried to hold on to the purse but the offender was too strong and she lost her grip. She went to grab the offender’s shirt but, because of the attack upon her by the offender, she was off balance and so she fell to the ground. In the course of doing that she was injured. She suffered a grazed left elbow, grazed palm and grazed right knee and also hurt her big toe. Of course, they are the physical injuries. It would be remiss of me to ignore the fact that it is inevitable that she would suffer psychologically. I have no doubt at all that this woman is much more apprehensive about simple things in life such as shopping and walking along the street because of what happened to her on 9 September. It was a cowardly attack.

4 After taking her handbag the offender ran away. He was chased by the victim’s husband who called out to a workman nearby who took over the pursuit of the offender. The pursuit lasted for some time, across Caringbah Oval and into the grounds of a local school. As he was being pursued the offender yelled out at the witness following him “I’ve got kids to feed.” This was not true. It was presumably said by the offender in order to engender sympathy which would have been entirely undeserved. As the offender leapt in to the school grounds, he left the victim’s purse behind.

5 About a month later, the building worker who had chased the offender noticed him in front of the Centrelink office. Police were called and the offender was eventually arrested.

6 When spoken to by police, the offender admitted what he had done and claimed that he had not realised the victim was sixty-nine years of age. Given that he had approached the couple from behind it is possible, I suppose, that he did not realise the actual ages of the couple, but I have no doubt at all that it was clear to the offender when he approached them that they were not sprightly, young people.

7 The offence is a very serious one. Some years ago Gleeson CJ in the Court of Criminal Appeal in R v Ranse (Unreported) 8 August 1994 spoke about the criminality involved in bag snatching offences such as this one. Gleeson CJ pointed out that offences like this represent a significant breach of the peace, that people of all ages have the right to walk along the street without fear of being attacked by those who spend some of their money on drugs and thus find themselves in financial difficulties. The courts need to send a very clear message to offenders such as Mr Burge about the wrongfulness of their conduct. I intend to do so today.

8 I should also say something about the offence of break, enter and steal. True it is that it was committed some time ago, in 2003, but it too was a very serious offence. I note in particular that items of clear sentimental value were stolen by the offender in the course of committing that offence; a 1927 football medal, five gold wedding bands, two gold rings with diamond solitaires and a gold ring containing four small diamonds, and a gold-coloured fob watch which are all likely to have been items of significant sentimental value to those who owned them. Yet, because of the offender’s criminality, the legitimate property owners have lost not only the monetary value of those items but their sentimental value as well. Were the offender dealt with on that break, enter and steal matter alone, he could expect a significant custodial sentence.

9 The offender had a difficult upbringing, one which is not to be envied. He was effectively abandoned by his mother. The time he spent with his father was punctuated by violence. He has been fending for himself for some considerable period of time. He has been in custody constantly from a young age, indeed the longest time he has been out of custody is the fourteen months, leading up to today’s sentencing. He suffers from Attention Deficit Hyperactivity Disorder as well which explains perhaps the somewhat impulsive nature of the offence for which he is to be sentenced. This does not appear to have been an offence which was planned to any significant extent,

10 He is now living with his girlfriend, Lara and she has been very supportive of him. The pre-sentence report or the psychological report suggests that she has no history of illegal behaviour, drug use or excessive use of alcohol. She is therefore a very positive influence in the offender’s life. Of course things are not all rosy because the offender continues to use drugs from time to time.

11 It was submitted by Ms Chu who appeared for the offender today, that one of the factors suggesting special circumstances were the offender’s prospects of rehabilitation. Given his custodial history, given that he has continued to use drugs and given that he has failed to take advantage of leniency offered to him in the past, I do not intend to make any finding of special circumstances at all.

12 The offender says that he is remorseful. He clearly does not want to go back to gaol. He has reached the age where gaol is a place he does not want to be. It is recognised by Ms Chu however that there is no alternative to a significant full-time custodial sentence being imposed upon the offender.

13 The offender did not give evidence before me and so that is a significant impediment to me finding that he is remorseful. I am prepared however to say that I will sentence the offender on the basis that he is remorseful because he perhaps did not realise quite how old the victim of his offence was. But there is little to suggest that, if he faced financial problems in the future, he would not also impulsively perhaps, commit offences to obtain money.

14 The offender is sentenced to imprisonment. I set a non-parole period of two years and seven months to commence on 7 January 2010, it being backdated to take account of two short periods of pre-sentence custody. The period of eligibility for parole is eleven months, making a total sentence of three and a half years. The offender is eligible to be released to parole on 29 August 2012.

15 I refer the offender to the Drug Court for assessment as to his suitability of a compulsory drug treatment order.

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