R v Burns [2005] ACTSC 90 (13 September 2005)

Last Updated: 6 October 2005

R v BENJAMIN THOMAS BURNS [2005] ACTSC 90

(13 September 2005)

EX TEMPORE JUDGMENT

No. SCC 136 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 13 September 2005

IN THE SUPREME COURT OF THE )

) No SCC 136 of 2005

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

BENJAMIN THOMAS BURNS

ORDER

Judge: Crispin J

Date: 13 September 2005

Place: Canberra

THE COURT ORDERS THAT:

1. in relation to the offence of aggravated burglary, sentenced to a term of 4 years' imprisonment;

2. in relation to the offence of driving a motor vehicle without the consent of the owner, sentenced to a term of 2 years' imprisonment;

3. the sentences for the first two offences are to be served concurrently and backdated to 10 June 2005;

4. in relation to the offence of contravening a protection order, sentenced to a term of 6 months' imprisonment, to commence 2 months after the commencement of the first two sentences;

5. in relation to the offence of breaching a bail undertaking on 24 May 2005, sentenced to a term of 3 months' imprisonment, to commence 2 months after the sentence for contravention of protection order;

6. in relation to the second offence of breaching a bail undertaking, sentenced to a term of 3 months' imprisonment, to commence 2 months after the earlier sentence for failing to appear commences;

7. head sentence of 4 years' imprisonment with a non-parole period of 12 months imposed which is also to be backdated to 10 June 2005;

8. convictions recorded in relation to all offences.

1. The prisoner is charged with two counts of failing to appear in compliance with bail undertakings without reasonable excuse, one court of aggravated burglary, one court of driving in a stolen motor vehicle, and one count of contravening a protection order.

2. The facts may be briefly stated. On 3 May 2005 the prisoner appeared in the ACT Magistrates Court on a charge of breaching a recognizance. On that day he entered into a bail undertaking to reappear in that court on 24 May 2005 at 9:30 am. He failed to do so, and his failure, of course, constitutes the first of the two counts of failing to appear in compliance with a bail undertaking.

3. A warrant was issued for his arrest and he was subsequently brought to court on 30 May 2005, at which stage he was again released on another bail undertaking to reappear on 6 June 2005 at 9:30 am. However, he again failed to appear and his failure constitutes the second of the bail offences.

4. On 30 May 2005 a Ms Lukic was granted an interim personal protection order in the ACT Magistrates Court, which inter alia restrained the prisoner from being within 100 metres of her or her daughter Jelana Maricic until 4 pm on 24 June 2005. The order was duly served upon the prisoner.

5. However, on 9 June 2005, he came into the company of Ms Maricic, and she, with him attended at the home of the victim, who for present purposes need not be named, and participated with him in the aggravated burglary of those premises. The offence of contravening a protection order is, of course, constituted by his involvement with her, and in particular by his infringement of the requirement that he not be within 100 metres of her.

6. The aggravated burglary was committed at a retirement village where the victim resided. The prisoner jimmied open a sliding door to the unit, causing the lock to break, so he and Ms Maricic could enter the unit. They removed numerous items from cupboards and drawers and threw various things on the floor. They then took the victim's Volvo motorcar from the locked garage of the unit and drove away.

7. They were subsequently seen and approached by police. Ms Maricic was arrested and police continued to pursue the prisoner, who had run from them into a car park nearby. He eventually turned and spoke to police in an aggressive manner, and was warned that if he did not lie down on the ground he would be sprayed with capsicum spray. Despite that indication he again attempted to run away and persisted in doing so despite being sprayed with capsicum spray. He was duly apprehended and handcuffed.

8. The offence of aggravated burglary is a serious offence carrying a maximum penalty of 20 years' imprisonment. The other offences with which the prisoner has been charged are also quite serious offences.

9. In sentencing the prisoner I am, of course, obliged to take into account his personal circumstances and background.

10. He was born on 5 July 1977 and accordingly is now 28 years of age. He was born and raised in Melbourne and is the youngest of four children. It appears that his father was an alcoholic who also abused amphetamines, and that the prisoner was physically and sexually assaulted by his father when he was 12 years of age.

11. He left the family home when he was 14, initially living with an older friend in a group house. He then spent some time on the streets and in refuges until he was old enough to find his own accommodation. He now has occasional telephone conversations with other members of his family, apart from his younger sister, all of who apparently still reside in the Melbourne area.

12. In October 1994, be commenced a long-term relationship apparently based upon the mutual addiction of he and his then partner to drugs. The couple moved to Canberra to escape the drug scene in early 1998. However, the relationship proved to be unstable but endured despite a number of separations prior to his imprisonment in October 2000 for contravention of a domestic violence order.

13. Upon his release from custody in October 2001, he relocated to Melbourne. He again returned to the ACT in early February 2005 to be closer to his two children who are now 6 and 7 years old. For a time he resumed living with his ex-partner with whom he has maintained what he describes as a love/hate relationship, until approximately April of this year when she took out an apprehended violence order. The effect of that order apparently prevents him from having access to his children.

14. The prisoner explained to the author of the pre-sentence report that he had commenced using alcohol, cannabis, and other illicit drugs, including heroin, when 14 years of age. He said that he has moderated his cannabis usage but that he first realised that he was addicted to heroin when 17 years of age, after experiencing withdrawal symptoms while in a juvenile detention centre. He said that he had been on his current methadone maintenance program for about 18 months, and claimed to have used heroin only once or twice in the past two years. His current methadone dosage is 100 milligrams daily.

15. During his current remand, he apparently failed to provide a sample for urine analysis twice, once on 15 July 2005 and once on 1 August 2005. He claims that he doesn't need a residential rehabilitation program as he doesn't use heroin, and that his current participation in a methadone maintenance program would preclude him from most residential rehabilitation programs. He indicated a preference to remain in Canberra if released and participate in a community based counselling service such as the Oasis Bridge Program.

16. He has also applied for inclusion in what is called the Wayback Committee Program, which is based in Western Sydney. This program, which is of about 8 months duration, consists of support and accommodation in group housing, attendance at group counselling and individual counselling, and living skills sessions. Wayback have apparently advised that he has been assessed as suitable and a placement could be offered to him.

17. The author of the pre-sentence report observes, correctly, that since 1990 the prisoner has almost constantly been the subject of supervision orders by juvenile and adult correctional authorities, except when fresh offences and breaches have resulted in periods of imprisonment. Attempts to engage him in residential rehabilitation or counselling have met with little success.

18. On 11 September 2004 be commenced 6 months of parole supervision with Community Correctional Services Victoria, but whilst initially maintaining regular contact for a period of about 3 months and seen to be trying, he apparently ceased regular reporting at around Christmas of that year and did not report at all after 18 January 2005. He failed to appear in court in February 2005 in relation to shoplifting offences committed in November and December of the previous year.

19. In relation to the offence of burglary, the prisoner told the author of the pre-sentence report that on 6 June 2005 he found himself locked out of his accommodation due to the absence of his flatmate, and whilst wondering what to do he met a young woman who told him that she was 19 years of age. Whilst in her company he used methamphetamine on two occasions, and "Ice" or Crystal methamphetamine on another occasion, which he said resulted in his "brain being fried", and not sleeping for three days.

20. He said that whilst in Civic with the same young woman, they saw people leaving a house. They subsequently broke into it and took a car. He claimed he had not been thinking about doing a burglary prior to this, but had no money, nowhere to live, and the girl with him had spent $400 on drugs for their use. He admitted that the offence was his idea and described it as plain stupidity. When asked about his thoughts concerning the offence he said, "It's wrong, it's not good, of course I feel bad for these people, but they got everything back and I'm in here four months later looking at jail or periodic detention".

21. The author of the pre-sentence report, having observed that Mr Burns had a lengthy history of drug abuse and related offending, commented that previous attempts to engage him in addressing his personal issues through counselling or residential rehabilitation had met with little success in the past. The author said that whilst it had to be said that the prisoners attitude to the current offences appeared somewhat superficial, he appeared to have minimised his recent drug use. It was more encouraging to note that he had successfully applied for placement in the Wayback program, but the author said that until the prisoner applied himself to addressing his personal substance issues in a sustained and responsible manner he would remain at considerable risk of offending.

22. The prisoner also gave evidence before me in which he indicated that his offending behaviour had constantly been attributable to his heroin addiction, and indicated that he was motivated to now address that addiction. He confirmed that he felt that he did not need fulltime residential rehabilitation, and that it could be addressed adequately in the manner that I previously referred to, that is by participation in other programs.

23. He was unable to remember why he had failed to answer his bail on 24 June 2005, but indicated that he had failed to answer bail on 6 June 2005 for a variety of reasons. These explanations included the fact that he'd discovered that the girl he was with had been younger than he had anticipated, that he'd previously failed to report to the police on one occasion and had been told that a warrant had been issued for his arrest, that he was under stress, and that he had hoped to address his problems before coming back to court. It should be noted that the offences of aggravated burglary, driving a stolen vehicle, and breach of the protection order were all committed on 9 June 2005 which was of course three days after he was due back in court.

24. Mr Theakston, who has appeared on behalf of the prisoner, has submitted that it would be within the ambit of my sentencing discretion to either proceed by way of what may be referred to as a Griffith's Remand or to impose periodic detention accompanied by orders sufficient to ensure adequate supervision whilst the prisoner addresses his heroin addiction.

25. Mr Theakston pointed out that whilst the offences committed by the prisoner were serious, none of them involved any actual or threatened violence. Furthermore, the prisoner had pleaded guilty at an early stage of the proceedings, which is an important factor as it may indicate some measure of contrition. In any event, it has a utilitarian value in saving the community the time and expense of a trial, and it may, in some cases, spare the victims the trauma of giving evidence in relation to the offences in question. In the present case it appears that the victim of the aggravated burglary is 96 years of age, and that is a factor that should be given some weight.

26. Mr Theakston also submitted that his client had demonstrated some insight into his problems, and I accept from his evidence that the prisoner does understand that his criminal conduct is related to his heroin addiction. I am also prepared to assume that he presently has some motivation to address these problems, though it should be observed that he has had ample opportunity to do so during the last decade.

27. On the other hand, as the learned Crown prosecutor points out, the prisoner has a very extensive criminal record for offences of dishonesty, as well as offences of violence. Since 1995, he has apparently been convicted of 26 offences.

28. I am, of course, obliged to have regard to the need for both general and specific deterrence, and the sentencing function is not merely one that is designed to facilitate the rehabilitation of the offender, though that is an important factor, especially in a case in which a person has a history of addiction to a narcotic drug.

29. I have taken into account the submissions that Mr Theakston has ably put forward on the prisoner's behalf, but regret that I am unable to wholly accede to them. It seems to me that a series of custodial penalties are unavoidable, though I propose taking a course that will result in the prisoner being able to secure conditional liberty somewhat earlier than would otherwise have been the case.

30. In relation to the offence of aggravated burglary I sentence you to a term of 4 years' imprisonment. In relation to the offence of driving a motor vehicle without the consent of the owner, I sentence you to a term of 2 years' imprisonment. I order that those terms be served concurrently, and that they be backdated to 10 June 2005, which was the date of your arrest.

31. In relation to the offence of contravening a protection order I order that you be sentenced to a term of 6 months' imprisonment, and that term is to commence 2 months after the commencement of the first two sentences. In relation to the offence of breaching a bail undertaking on 24 May 2005, I sentence you to be imprisoned for a period of 3 months, and order that that sentence commence 2 months after the sentence for contravention of a protection order.

32. In relation to the second offence of failing to appear after a bail undertaking, I again order that you be imprisoned for a period of 3 months, and direct that that sentence commence 2 months after the earlier sentence for failing to appear commences. Those orders involve a total head sentence of 4 years imprisonment. I impose a non-parole period of 12 months to run from 10 June 2005.

33. He will, of course, be convicted on each of the matters.

34. Now Mr Burns, what that means effectively is that you will be out of prison in June next year. You really are going to have to address this problem. Your history so far suggests that for the rest of your life you may wind up going in and out of jail. This has been the pattern now for a long period of time, so if you don't address the problem, prospects for you in the future look bleak. The head sentence for these offences is 4 years, which means that upon your release you will still have 3 years hanging over your head. If you commit further offences in that period of time you will almost certainly go back in to serve the balance of the 3-year term, irrespective of any sentence that may be imposed on you for other offences. So you really are going to have to address your problems and do something about it.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 20 September 2005

Counsel for the Crown: Mr S Drumgold

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Prisoner: Mr G Theakston

Solicitor for the Prisoner: Legal Aid Office (ACT)

Date of hearing 13 September 2005

Date of judgment 13 September 2005