DPP v Burke

(a) Commit family violence against the protected person(s).

(b) Intentionally damage any property of the protected person(s) or threaten to do so.

(c) Get another person to do anything the respondent must not do under this order.

1. On the 27th of October 2023 Ms Parks returned to her apartment to find that you had called a locksmith to gain entry to her house. Ms Parks called police and since then has not allowed you to stay in the apartment. You indicated to Ms Parks that you had been living in your car near Ms Parks' home.
2. On the 7th of February 2024, you began contacting Ms Parks via mobile telephone. You sent two text messages to which Ms Parks did not respond. At 7:59am you telephoned Ms Parks and had a short conversation. She told you that she was busy and couldn't talk to you. Over the next few hours you attempted to contact her several times by telephone, text message and WeChat. When Ms Parks returned home she sent you a text message stating, "Please do not call me, today is my holiday. I do not need to answer your call." Ms Parks did not answer a further call from you at 12:02pm.
3. At approximately 1:00pm you attended Ms Parks' unit in Balwyn North and started banging loudly on the door and yelling to be let in. Neighbours could hear the banging and out of concern contacted the police. You continued banging aggressively and yelling, "Open the door. Let me in" Ms Parks and Mr Knox heard the banging and came closer to the door. You were blocking the keyhole but they recognised your voice. Ms Parks yelled, "Don't knock on my door" and did not open the door. Mr Knox told you that you should go away. You became angrier, yelling aggressively at them both and started banging harder on the door. Mr Knox observed the door shaking as a result of the banging, and Ms Parks observed what she believed to be part of the door fall to the floor, alarming her. Ms Parks was worried that the door was broken and that she would be unable to pay the landlord for the damage, so she went to the door and opened it to ask you why he had damaged the door. As the door opened you rushed into the apartment punching Mr Knox on the right side of his face. You grabbed him by the arms and yelled "Why didn't you open the door". Mr Knox attempted to get away and tried to run to his room, yelling to Ms Parks to call police and continued to struggle with you towards his bedroom. Ms Parks followed and attempted to pull you off her son.
4. When she couldn't pull you off him, she called Triple Zero. Mr Knox kept saying "Leave me alone. Don't touch me." and attempted to fend you off with one hand. He became very scared that you would do something to him. He picked up kitchen knife that was on his desk in his bedroom and slashed at you, cutting him on the forearm. You continued to punch at Mr Knox, yelling and shouting at him. Mr Knox used the knife to slash at your arm to get you to release his hold. Your arm started bleeding, causing you to release your hold on Mr Knox and move towards the door of the bedroom. You continued yelling "You liked the house, and I bought the house for you' and "All you have done is brought harm to your mum, then you are forcing your mum to commit suicide." Mr Knox retreated behind a chair in the room, still frightened that you would come further in the room and attack him again.
5. At around 1:15pm police attended the unit. Ms Parks was outside the apartment and met and spoke with the officers. Police entered and located you with lacerations to his forearms, standing in the doorway of Knox's bedroom. You exited the apartment and received treatment for your injuries from Ambulance Victoria Paramedics under police supervision. Mr Knox was in his bedroom and was directed to come out of the apartment, before being placed under arrest. The apartment was searched, and a knife was located on the desk in Mr Knox's bedroom with blood on the blade. While speaking with Mr Knox and Ms Parks, police members determined that you did not live at the address, had attended unannounced and subsequently punched Mr Knox in the face after entering the apartment. You were placed under arrest by Senior Constable Chris HALLAM and stated a number of things, as outlined in the prosecution opening, including that you lived at the apartment and had been spending nights there and that you had gone to the apartment to tell Mr Knox that you and Ms Parks had just bought a house.
6. You were transported to the Box Hill Hospital to receive treatment for your injuries and placed under hospital guard. At approximately 1:30pm police attended at the address where they observed a fallen hook on the floor near the front door, a kitchen knife with blood on top of the desk in a bedroom, a bloodstained t-shit on the floor near the front door, and blood on the floor near the front door and bedroom. On 8 February 2024 and after your discharge from Hospital you were transported to the Box Hill Police Station. You were assessed by a Forensic Medical Officer as unfit for interview and were remanded in custody.

1. I have taken into account the impact of your offending. I was provided by agreement with a victim impact statement or statutory declaration authored by Ms Parks. In that statement, Ms Parks speaks of the impact of your offending on her and how in particular it has heightened her concern for her own safety and wellbeing, and that of her son. She refers to the relationship that you had with her, her perception that you were trying to mentally control her, and the serious mental harm that you have caused to her as a result of your actions.

1. The charges you have pleaded guilty to are serious as indicated by the maximum penalties.
2. In terms of the aggravated burglary charge, assessing the charge against the considerations outlined in the relevant cases, including DPP v Meyers, overall, while I accept that there are more serious examples, the offending is still serious.[4] As pleaded, your intention at the time was to commit an assault. While Ms Parks opened the door, this is only after you were aggressively banging on it, to the point that it was shaking and was perceived to be at risk of breaking. Properly viewed, your entry was forceful. Importantly you were not in possession of a weapon, nor were you in company with anyone else, which would have significantly aggravated your offending.
3. I also take into account that your offending occurs within a family violence context, as outlined in the prosecution opening. You entered the home of a previous intimate partner who had an intervention order out against and who was fearful of you.
4. The higher courts have made plain that such offending must be denounced and recognised for the harm it causes (see Reynolds, Skeates (a pseudonym) v The King [2023] VSCA 226) and also that intervention orders must strictly be adhered to.[5]
5. Your assault on Mr Knox, a very young adult, was confronting, with you rushing at him upon the door opening and punching him on the right side of the face. As your Counsel reflected, given how quickly things escalated, it was fortunate that no greater harm was caused.
6. I take into account the principle of totality when considering all of the offending. In particular that the assault (Charge 2) is what constitutes the contravention of the order (Charge 3). The sentence however still needs to reflect the separate criminality involved in the contravention itself (see Maher v The Queen [2011] VSCA 136.
7. As for your moral culpability, which I'll return to in a moment, it is clear on the material before the Court that you suffer from a long-standing significant mental illness and that in the lead up to the offending your mental health had deteriorated significantly. On the evidence, I accept that your impaired mental ability contributed causally to the commission of the offence. In turn, this significantly impacts on the level of your culpability.

1. While your case has a protracted history, when viewed in context your plea of guilty was entered at the earliest opportunity. Your plea of guilty entitles you to an important sentencing discount. I accept that your plea reflects your remorse, acceptance of responsibility and willingness to facilitate the course of justice. I also accept that following the stabilisation of your mental health, you have expressed to others genuine remorse for your offending.

1. Your personal circumstances were canvassed by your Counsel and in the report of Dr McInerney.
2. You were born in Elmina in Egypt and were raised by your family who you describe as supportive. Your father was a doctor working at a university. He presently lives in Egypt and you have some contact with him while you have been on remand. He remains a supportive of you. Your mother worked as a qualified accountant and passed away in recent years. She died only recently in 2023 from cancer. You describe a good relationship with your siblings who have their own families and are working. Your sister resides in Egypt and your brother is in Melbourne. You have regular contact with your brother and you plan to reside with him and his family upon release.
3. You were a high achieving student, completed your tertiary education and studied Fine Arts at university before moving to Australia in early adulthood to pursue further education and opportunities.
4. You arrived in Australia in 2006 when you were around 22 year old and became a citizen in 2015.
5. You have completed other qualifications in Australia, including large vehicle management, automative mechanic repairs (box hill institute) and a later Certificate III in Warehousing, Transport Distribution and Transport Logistics.
6. Since this time you have had a consistent employment record. You have worked in a variety of jobs, including as a retail assistant, in construction and as a truck driver, briefly owning your own trucking business before an episode of psychosis in 2012. In respect of this episode you told Dr Clare McInerny that you previously believed that you had been drugged by an unknown person in order to sabotage your business. Continuing with your employment upon release from custody you intend to secure work in warehousing or truck driving (once you have recovered your licence). Longer term you hope to forge a career as a mechanic.
7. Shortly after relocating to Australia you had an arranged marriage from which you have two children, aged 7 and 13 years. The relationship was unstable and you had divorced twice. You report that she left you in the context of your mental illness. There is a history of violence and intervention orders. The order has reportedly been modified to allow you to see your children. Following the separation you had consistent weekend contact with your children and were actively coparenting. This contact ceased in 2023 as your mental health issues worsened. You have recently contacted McKillop Family Relationships to arrange for mediation in order to facilitate contact between you and your children.
8. You met your most recent partner Ms Parks some two years ago. You rapidly got engaged and rented a property together in Balwyn with her teenage son, Mr Knox. Your account of the relationship deviates from the material contained in police records and Dr McInerney also notes that you struggled to provide a coherent history of the difficulties between you and your ex-partner.
9. You first received a diagnosis of paranoid schizophrenia in 2012 and were admitted for one month to Werribee Mercy. Your presenting symptoms included believing someone had put something in your eye and of hearing voices and being socially withdrawn.
10. You were treated with a range of psychotropic medications for 10 years and engaged with various Melbourne mental health services. Dr McInerney notes on her review of medical records that your illness was treatment responsive. However, your past adherence to treatment was poor when not receiving assertive or involuntary care and that you were known to be able to conceal symptoms of mental illness.
11. You report that you had a second psychiatric admission in 2017 having self-ceased medications due to weight gain and in the context of a motor vehicle accident. You believed the car was a spaceship and you were receiving command hallucinations. During this admission your diagnosis was changed to Schizoaffective Disorder. Again you responded well to treatment.
12. In 2017, in respect of this road traffick accident, you were found to be mentally impaired due to mental illness and you were placed on a non-custodial supervision order.
13. You had an extended period of relative stability between 2017 and 2021 when you were receiving, through this order, assertive area mental health service case management and monitoring.
14. Following the end of the NCSO you steadily reduced your psychiatric medications eventually ceasing them altogether approximately 2 years prior to your arrest. You continued to attend the Hawthorn mental health clinic on a voluntary basis. The Justice Health records note that in the months leading up to February 2024 you were increasingly disengaged from your mental health service, failing to attend appointments. You remained off psychiatric medication, although no overt psychosis was revealed during your treatment and brief phone calls with mental health clinicians.
15. A referral had been made to the Forensicare Problem Behaviour Program for assessment of your stalking risk to your ex-partner but you did not attend that assessment.
16. You have a relevant prior criminal history, for similar offending and involving the same victim. You have been sentenced to a variety of dispositions. I accept that your mental health is broadly relevant to your prior history.
17. After your most recent arrest your brother recounted to staff how you appeared to have deteriorated once you ceased medications in 2021 with agitation, aggression, and bizarre and preoccupied behaviour.
18. In retrospect you reported to Dr McInerney that you could see that you had not been well at the time of your arrest.
19. On arrival to prison in February 2024 it soon became evident that you were actively psychotic. Several attempts were undertaken to resume psychotropic medication which were unsuccessful. Justice Health Records which Dr McInerney had access to document your presentation at the time, which include presenting with delusional beliefs.
20. The recent forensicare report notes that the prison discharge summary indicates that you needed 3 periods of management for a time in the Erskine Unit due to deterioration in your mental state in the context of noncompliance with your medications.
21. Significantly, you also had two psychiatric admissions to Thomas Embling Hospital since your remand last year, with a 6 week admission in June 2024 (11 June to 14 July 2024) and a 3 week admission in October 2024 (16 October to 31 October 2024). In the lead up to these admissions, you recalled hallucinating, sitting for lengthy periods watching the sun and shaking. You had refused psychiatric medication in prison but took it in hospital.
22. Following the first admission you self-ceased the medication on return to prison but soon became unwell again, leading to a second admission. In hospital you were treated with injectable antipsychotic medication and on your return to prison you have continued to take your oral medication and have remained well and you now report feeling like a 'different person.' You are currently residing in mainstream at Ravenhall Correctional Centre.
23. You were first assessed by Dr McInerney in May 2024 and she assessed you as unfit to be tried on the basis that you were not able to meaningfully follow the course of the trial and give competent legal instructions. At her second assessment of you in January 2025 you no longer appeared to experiencing active hallucination or delusions and your insight had somewhat improved. You were also assessed by Dr John Luu on 2 September 2024 as to the issue of whether you were fit to stand trial. On balance, it was concluded that while you continue to experience active psychosis and hold persecutory delusions, you were currently fit to be tried.

1. Dr McInerney provides the following opinions as to your psychiatric condition/s (paragraph 9):

(a) You have a diagnosis of schizoaffective disorder, which is a severe and enduring mental illness characterised by features combining those typically seen in schizophrenia, such as delusions and hallucinations. This is consistent with Dr Luu diagnosis of schizoaffective disorder: Bipolar Type.

(b) Your illness is chronic and requires lifelong pharmacological treatment and monitoring.

(c) Your illness has been characterised by irritability, disinhibition, paranoia regarding family members and partners, and false beliefs about the infidelity of partners.

(d) Your mental illness was steadily deteriorating since 2022 int eh context of non-adherence to treatment, 'culminating in the matter currently before the court.'

(e) Your illness is significantly complicated by longstanding poor insight, which is not uncommon in this condition.

(f) At the time of the offending, you were in a state of manic psychosis, which was a relapse of your known schizoaffective disorder. The relapse was most likely the result of non-adherence to treatment in the context of very poor insight.

(g) You held a firm belief that you continued to be in a relationship with Ms Parks, a belief at odds with her view of the relationship. It is unclear if this difference of opinion is due to delusional beliefs on your part or due to some other factor. It is not entirely clear what your intent was in approaching her or in insisting she open the door. It is clear however that [you] did have paranoia directed at both Ms Parks (including delusions of infidelity) and her son (regarding perceived blocking of his access to Ms Parks). This paranoia, combined with the irritability associated with this condition, 'were the primary drivers of his behaviour'. 'Exacerbating the situation was a marked reduction in judgement and reduced ability to respond to social cues and direction, also the result of active manic psychosis.'

1. As for the impact of imprisonment, Dr McInerney opines that it appears to have a had a negative impact on your mental health, requiring transfers to Thomas Embling hospital. Additionally, your experience in prison appears to have been more difficult due to your mental illness.
2. I take into account your personal circumstances and how over the years you have struggled with your mental health. I take into account the challenges faced by you and your family in navigating an over-burdened and under-resourced system, in which you have at times become lost to follow up.
3. I accept your Counsels submission that there is 'an unequivocal causative connection' between your complex mental illness and the offending. I accept that limbs 1-6 of the Verdins principles are enlivened. With some reservation as to limb 6, the prosecution accepted that Verdins has application. As already indicated I accept that your condition reduces your moral culpability, as distinct of course from your legal culpability. I accept the condition has a bearing on the kind of sentence that is imposed and given the nature and severity of your condition that it moderates both general and specific deterrence. As put by your Counsel, I accept that you are not an appropriate vehicle for general deterrence and that less weight can be given to specific deterrence.
4. I also accept that imprisonment is a greater burden for you by reason of your psychiatric condition. As discussed at the hearing, in many ways your health has stabilised because of the rigorous interventions in custody. I do however accept, given the history of your incarceration and the evidence as to your psychiatric conditions, that there a serious risk that imprisonment will significantly adversely effect your mental health.

1. Also, I take into account that you have suffered substantial physical injuries to your arms as a result of the offending. On arrest you were transported and treated at the Box Hill Hospital. The lacerations required surgery but you refused this, no doubt influenced by your mental state at the time, and you have experienced ongoing pain as a result of your physical injuries for a period of 6 months after you were remanded. I take this matter into account as extra curial punishment and as having contributed to the experience of imprisonment being more onerous.

1. Your prospects of rehabilitation are inextricably bound to you maintaining stable mental health.
2. Dr McInerney opines that you will need antipsychotic medication for life. Your mental illness requires specialist mental healthcare with access to multidisciplinary input and urgent assessment at times of need, that is, you require management by an area mental health service. You will need ongoing careful assessment and monitoring.
3. I received a letter from Forensicare of 28 March 2025. They confirm that you are currently receiving mental health treatment through Forensicare's Outpatient Service at Ravenhall. Your treatment team have deemed you suitable for voluntary mental health follow up in the event that you are released from custody. The Forensicare MHARS recent assessment agrees with the view of the Forensic treating team at Ravenhall that you do not currently meet the criteria for compulsory treatment, noting that you have remained well enough to be managed in the general prison population since mid-November 2024. You have been referred to North-West Area Mental Health Services (Hume Clinic) for continuation of mental health care on release from custody. You also have an appointment booked with your GP to attend if you are released from custody to ensure ongoing prescription of your oral, anti-psychotic medication.
4. Your brother also provided a very detailed letter to the Court in which he provides further insight into your background and mental health struggles. It is clear that he has been very concerned and involved in trying to get you appropriate help and support. He continues to regularly visit you in custody. He describes that you now have gained your senses - 'you can talk with him, think about his future, and feel the emotions' related to your family and the grief of losing your mother. You have discussed together your future, including the importance of medication and trying to get yourself used to returning to work and putting your life back together. He and his family are able to support you with housing until you find a suitable place for you to live.
5. Your risks include violence, threats of violence and stalking, particularly towards partners and ex-partners. While there are some attitudinal factors partly underling these risks, they are largely the result of untreated manic psychosis.
6. On the evidence, you also need to develop your insight and continue to engage in psychoeducation. On your most recent assessment with Forensicare, your judgement and insight appeared good on presentation and you stated your willingness to continue with your medications and showed understanding as to its necessity.
7. In my assessment of your rehabilitate prospects I also take into account your prior criminal history and also your history of non-compliance in the past and that you were on a CCO at the time of your offending. I accept that you have now demonstrated in custody a commitment to maintaining your medications and restoring your life and that the experience of an extensive period on remand has also been a salutary one. I take into account your good work history and I accept that your children, and your hope to resume contact with them, provides you with motivation. I also take into account that you have used your time on remand productively, engaging in employment as a garden full-time billet, adhering to your medication and engaging with your treatment team, and completing educational courses. Also, protectively, you do not appear to have a history of substance misuse.
8. Your mental illness is treatable and if you maintain your medication regime and treatment then you clearly have the capacity to live a productive and meaningful life. I have no doubt that your recent experiences have been distressing and that you are motivated to maintain the stability that you have now achieved. You must understand the importance of this. You must understand that when you are unwell and your mental health deteriorates you are capable of acting in a manner that is aggressive, confronting and entirely unacceptable. There is an intervention order in place that continues to protect Ms Parks and her son and as indicated today in Court, the order protecting Ms Parks, the interim order that you have been served with, is active with full conditions at least until December of 2034, there is an order protecting Mr Knox which is currently active that continues at least until November of 2028.

1. The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. I have already referred to the application of the Verdins principles which call for considerable moderation of these objectives. I accept that community protection remains an important consideration.
2. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. I take into account also the general landscape for sentencing for these offences, particularly for aggravated burglary. The prosecution referred to the Sentencing snapshots (no 286) in respect of the charge of aggravated burglary, indicating that the median term of imprisonment was 2.5 years. I have had regard to this, also of course noting the limitations of statistics and the need to ensure individualised justice.
3. Your Counsel submits that in the compelling circumstances of your case the Court should impose a combination sentence and the time you have already served on remand comfortably realises the punitive sentencing objectives in all the circumstances. In all the circumstances, the prosecution submit that while a sentence of imprisonment with a non-parole period may be appropriate they accept that a combination sentence is open, provided that it allows for rigorous regime of treatment and supervision.
4. While the Court must impose a just sentence for your offending I do consider that the unique circumstances of your offending militates towards the imposition of a sentence which acknowledges and reflects your reduced moral culpability and the appropriately diminished role of denunciation, deterrence and just punishment.
5. I had you assessed for a community corrections order and the assessment outcome report, which I have taken into account, assesses you as unsuitable. It canvasses your history of non-compliance in the past, your minimisation of the offending and your assessment of high risk.
6. In all the circumstances, I consider that a combination sentence is the just and appropriate sentence. On my assessment, you have served an adequately punitive period in custody. Having now achieved stability in your mental health, notwithstanding the legitimate concerns of Corrections, an order represents further appropriate punishment and importantly can assist in your ongoing rehabilitation, with a focus on structure, supervision and therapeutic interventions directed at developing your insight and risk management. The Forensicare MHARS assessment concludes that a mental health condition would be helpful in part to encourage your compliance but notes that it is not a replacement for, or as effective, as treatment under the Mental Health Act. Again, quite apart from any sentence this Court imposes, it is critical that you maintain engagement with the Northwest AMHS, who are a team that know you well.
7. Also, in setting and structuring the sentence I am about to impose, I take into account the principles of proportionality, parsimony and, as already noted, totality.

1. On all charges you are convicted and sentenced as follows -
2. On Charge 1, which is the aggravated burglary charge, I convict you and sentence you to 418 days imprisonment and I am placing you on an eight-month community corrections order.
3. On the common law assault you are convicted and sentenced to four months' imprisonment and I am placing you on an 8-month community corrections order.
4. In respect of the contravention of the order, intending to cause harm or fear for safety, you are convicted and sentenced to three months' imprisonment and placed on a community corrections order of eight months.
5. I make no orders for cumulation. The sentences are to be served concurrently.
6. The community corrections order that I have imposed will operate as the one order.
7. Every community corrections order, Mr Burke, has mandatory conditions. This is largely designed to assist you and to progress your rehabilitation, but it is also a punitive order, it is a punishment. The conditions that apply include:
   1. That you must not commit another offence punishable by imprisonment during the operational period of the order.
   2. You must comply with any obligation or requirement that is prescribed or required by Corrections.
   3. You must report to and receive visits from Corrections within two days of the order being made, the order being made today, and the office is Coolaroo.
   4. You must let a community corrections officer know within two clear working days of you changing your address or job
   5. You must not leave Victoria without first getting permission from Corrections to do so.
   6. You must obey all lawful instructions from and directions of Corrections.
8. Now the additional conditions as I have indicated:
   1. You must be under the supervision of a Community Corrections Officer for a period of 8 month(s).
   2. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological or psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
   3. You must re-appear at court for a review of your compliance with the order as directed by the Court. You must attend for review on 17th June 2025 at 09:30 AM at Melbourne County Court.
   4. Pursuant to s.48D(3)(d) of the Sentencing Act to make contact with the North-West Area Mental Health Services within 2 days of release for the purpose of an assessment.
   5. To attend GP appointment on Tuesday 1 April 2025.
9. If you were to breach an order, then you can return before this Court for first of all, breaching the order, and I can punish you for that; and second of all, it would be open for me to re-sentence you for the original charges.
10. I declare pursuant to s18 that you have served 418 days as pre-sentence detention, that is not inclusive of today,
11. I also can indicate pursuant to s6AAA that but for your plea of guilty I would have sentenced you to some two and a half years' imprisonment with a non-parole period of one year and five months.

[4] DPP v Meyers [2014] VSCA 314.

[5] Skeates (a pseudonym) v The King [2023] VSCA 226;