DPP v Burns [2021] VSC 518

2 In the late afternoon of that date, you subjected Donald Brandenburg to a prolonged and brutal beating in the course of which you inflicted a number of serious injuries on him, as a result of which he died.

3 At the time of the incident you were 45 years of age. You were then living in a one bedroom unit in Murra Court, Ashwood where you had resided for some nine years. Your long-term partner, Song Cousland, stayed with you in the unit several nights each week.

4 At the time of his death Donald Brandenburg was 65 years of age. During the previous four or five years, he had also been living in the unit, where he slept on the floor of the lounge room in a sleeping bag. On a number of occasions during that period, you had been observed to have acted towards him in a manner that was verbally abusive and physically violent.

5 One witness, Brandon West, stated that you acted like a 'stand over man' to Donald Brandenburg, and that he had seen you hit him on approximately fifteen different occasions. A neighbour, Phyllis Brock, said that every time she saw Mr Brandenburg, he had bruises on his arms, face and hands. Another witness, Graham Blasdall said that he had seen you hit Mr Brandenburg about twelve or thirteen times and that you treated him like a 'slave'.

6 Another neighbour, Tanya Lombardi, witnessed an incident about two weeks before Mr Brandenburg's death. On that occasion, you were looking for an item which you could not find. You verbally abused Mr Brandenburg and told him that you were going to 'kill him'.

7 Two days before Mr Brandenburg's death, on 1 August 2017, you sent a text message to an associate stating that you had found Ms Cousland in bed with Mr Brandenburg. You said you had some hedge clippers out and a friend of yours was holding him down, and that you had 'almost done it'.

8 Those circumstances form the context to, and provide some explanation for, what occurred on 3 August. At 1:30 pm on that day, Senior Constable Marc Burley attended the unit looking for your brother. When he spoke to Mr Brandenburg, he did not observe him to have any injuries, and he had no concerns about Mr Brandenburg's welfare. Later, at 3:00 pm, the neighbour from the adjoining unit, John Bourke, heard you yelling at Mr Brandenburg and accusing him of being a 'lazy bastard,' because he had not done any shopping.

9 At 4:00 pm, you went to Mr Bourke's front door, and handed him his newspaper. Mr Bourke said that you seemed to be 'pumped up' as if you were having an adrenalin rush.

10 The incident, in which you killed Mr Brandenburg, occurred sometime between 4:00 pm and 7:00 pm. In the course of the incident, you assaulted Mr Brandenburg in a brutal and sustained manner, in which you struck at least ten separate blows to his head, chest and abdomen, as evidenced by bruises or fractures to his right eye, both ears, the side and top of his skull, his nose, the area around his left eye socket, the back of his head, his left chest, his right chest, his central abdomen, his left flank, both of his feet, and both of his arms.

11 As a result of the beating, Mr Brandenburg suffered several serious internal injuries. They included: a ruptured liver, with multiple lacerations; a laceration of the spleen; multiple rib fractures; bruising of the lungs; bleeding in the tissues that protect the brain, consisting of a subarachnoid haemorrhage and a subdural haematoma; and a haemorrhage in the diaphragm. The injuries to the abdomen and chest were sufficiently significant to have caused Mr Brandenburg's death, quite separately to the head injuries. As the liver and spleen are in different locations in the abdomen, there were at least two separate episodes of blunt force trauma to the abdomen. The pathologist was of the opinion that a moderate to severe level of force would have been required in order to have caused the internal injuries to those organs.

12 Having brutally injured and killed Donald Brandenburg in that way, you then set about trying to cast blame onto him for the incident. You tampered with the crime scene, planting a knife in Mr Brandenburg's hand to make it look as if you had acted in self-defence. You then fled the premises with Ms Cousland. In the hours that followed, you told lies to a number of people about what had happened in order to concoct a defence for yourself.

13 At 7:00 pm, you sent a text message to Brandon West, stating that you had killed someone in self-defence, after that person had pulled a carving knife and held it to Ms Cousland's throat. Fifteen minutes later, you telephoned a friend, Philip Kane, and left a message on voicemail, repeating the same false account of the incident.

14 At 7:35 pm, you telephoned your sister Rachael and gave the same account to her, namely, that you had killed Mr Brandenburg in self-defence, after he had pulled a knife on Ms Cousland. Following that conversation, Ms Burns telephoned the emergency number triple 0 and requested that an ambulance be sent to Murra Court.

15 In the meantime, you and Ms Cousland travelled by taxi to the home of Donna Cherri, who was the girlfriend of your brother Benjamin. You told Ms Cherri and your brother that you thought that you had killed Mr Brandenburg. At that point, you were observed to be panicking and frantic. Ms Cherri drove you, Ms Cousland and Benjamin to Murra Court. When Benjamin and Ms Cherri walked up the driveway, paramedics were at the front door of the premises. Ms Cherri and Benjamin then departed from the premises with you and Ms Cousland. In the meantime, two police constables attended the unit. After they entered it, they found Mr Brandenburg sitting on the couch covered by a doona pulled up to his chest. He was holding a kitchen knife in his right hand pointing upwards.

16 Ms Cherri then dropped you and Ms Cousland at the home of Graham Blasdall. You told Mr Blasdall that you had killed Mr Brandenburg, and that if he (Mr Blasdall) did not shut up, he would be the 'next'. You told Mr Blasdall that Mr Brandenburg had been pulling faces, that you kept punching him, and that you thought Mr Brandenburg was faking injury, so you kept hitting him. While you were at Mr Blasdall's home, you tried to persuade him to lie for you. You told him to say that he was at the unit in Murra Court recently and that Mr Brandenburg had been acting in an indecent manner to other people and to Ms Cousland. When Mr Blasdall made a mistake in trying to recite that fictitious account, you lost your temper and threatened to kill him. At one point, you told Mr Blasdall that you had beaten Mr Brandenburg on purpose and that you had meant to do it.

17 At 9:45 pm, you spoke to your sister Rachael on the telephone. You again told her that you had acted in self-defence. At 10:10 pm, you telephoned Mr Barry Parker, a church warden at St Matthew's Anglican Church. You also lied to him, telling him that you had killed Donald Brandenburg by accident, as he had pulled out a knife and held it at Song Cousland's throat. Subsequently, at 12:40 am, you again spoke to your sister Rachael on the telephone. You told her you were going to turn yourself in to the police on the next day. You told your sister again that Mr Brandenburg had pulled a knife on Ms Cousland, that you had hit Mr Brandenburg, and that he fell and hit his head.

18 At 3:55 am, police officers attended at Mr Blasdall's home, where you still were located. You were arrested and taken, with Ms Cousland, to Box Hill Police Station. Upon being interviewed by police, you exercised your right to make a 'no comment' response to questions put to you.

19 Following your arrest you were remanded in custody. Subsequently, you were committed for trial on the charge of murder. Your trial was listed to commence on 8 May 2019. Due to issues that were raised concerning your fitness for trial, it was adjourned to 14 May 2019. On that date, evidence was given by a psychiatrist that you were fit to be tried. An offer was then made on your behalf to plead guilty to manslaughter, but that offer was not accepted by the prosecution. After the trial had commenced, further concerns were raised about your fitness for trial. Having heard evidence from psychiatrists, the trial judge discharged the jury. The fitness investigation was adjourned, in order that it would be held closer to the anticipated date of the re-trial.

20 Subsequently, on 20 October 2020, following an investigation before a judge, you were found fit to be tried. The trial was listed for 27 January 2021. In the meantime, on 17 December 2020, an offer was again made on your behalf to plead guilty to manslaughter, on the basis that you accepted the facts contained in the summary of prosecution opening. That offer was accepted by the prosecution. On 21 January, on being arraigned, you pleaded guilty to manslaughter. The hearing of the plea was adjourned to enable evidence to be prepared on your behalf.

21 The offence of manslaughter, to which you have pleaded guilty, is a most serious offence, for which the maximum sentence, at the time of the offence, was 20 years' imprisonment. You have pleaded guilty to the offence on the basis that you caused the death of Donald Brandenburg by an unlawful and dangerous act, in that the assault, which you inflicted on him, involved such a degree of force that a reasonable person, in your position, would have realised that you were exposing Mr Brandenburg to an appreciable risk of serious injury.

22 Based on the number and nature of the injuries sustained by Mr Brandenburg, it is clear that you subjected him to a brutal and sustained physical attack in which you inflicted serious injuries to separate parts of his body. Mr Brandenburg was older and weaker than you, and he was easily dominated and overpowered by you. The statements of his sister, Astrid Brandenburg, and his daughter, Lisa Gleeson, describe him as a passive and gentle person. It is clear, from the nature of the injuries that he sustained, that he had no capacity to defend himself against the senseless and violent attack to which you subjected him.

23 As I stated, the context in which you assaulted and killed Donald Brandenburg is relevant. You are not to be punished for, or sentenced on the basis of, the previous assaults that you had committed on him. However, they are significant because they demonstrate that the violent attack by which you caused his death was not an isolated incident in which, for some reason, you acted entirely out of character.

24 On the plea, your counsel, Mr Morgan made a submission, based on the statements that you made to a number of persons following the incident, that you had acted in response to Mr Brandenburg brandishing a knife at either you or Ms Cousland. On consideration, I am not satisfied, on the balance of probabilities, that the incident, in which you killed Mr Brandenburg, commenced or was precipitated in that way. In the hours that followed the incident, you gave different and inconsistent accounts to a number of different people to whom you spoke. As I have already noted, Mr Brandenburg has been described as a gentle and passive person, and it is most unlikely that, in the circumstances of his relationship with you, he would have threatened either Ms Cousland or you with a knife. In addition, you did not suffer any defensive injuries, or injuries which could indicate that Mr Brandenburg acted in an aggressive manner to you or Ms Cousland.

25 The context in which the incident occurred, and, in particular, the circumstances in which you had, on a number of previous occasions, been given to vent your anger on Mr Brandenburg by physically assaulting him, are also relevant to determining how the incident was precipitated, particularly in view of the fact that, during the previous two or three months, you had ceased taking the depot medication that had been prescribed for your long-standing psychiatric illness. In those circumstances, I am not satisfied, on the balance of probabilities that Mr Brandenburg threatened you or produced a knife, or in any way precipitated the incident, in the manner claimed by you after it occurred. Rather, I am satisfied, beyond reasonable doubt, that your violent attack on Mr Brandenburg was the product of a fit of uncontrollable anger which you vented on him.

26 On the other hand, I accept that your actions were not premeditated. You did not use any weapon with which to perpetrate the assault on him. Nevertheless, in view of the number and severity of the injuries inflicted by you on him, viewed objectively, your offence was a serious instance of the crime of manslaughter.

27 By your criminal actions you have taken the life of a fellow human being. In her victim impact statement, which was read to the Court, Mr Brandenburg's sister, Astrid Brandenburg, described her brother as a good person, who had a deep love of nature, science, astronomy and machines, and who had an unquenchable curiosity about the world and nature. While Donald Brandenburg was the principal victim of your crime, it is clear from Ms Brandenburg's statement that she, and other members of his family, are also real victims of it. Ms Brandenburg described, in moving terms, the traumatic circumstances in which she learnt of her brother's death, and the grief and anguish that she has suffered since then. As she stated, the path to healing and closure has been a long and difficult one for her.

28 You have a relevant but quite limited criminal history. In 1997, you were sentenced by the Melbourne Magistrates' Court to a community based order for twelve months on charges of recklessly causing serious injury and intentionally causing serious injury. You twice breached that order. On the second occasion, on 29 October 1998, the order was cancelled and you were sentenced to an aggregate term of four months' imprisonment, which was suspended for a period of twelve months. On the same date, you were sentenced by the Melbourne Magistrates' Court, on further charges of recklessly causing serious injury and making a threat to kill, to an aggregate term of six months' imprisonment which was wholly suspended for twelve months. More recently, in April 2015, you were fined $750 by the Ringwood Magistrates' Court on one charge of contravening a family violence interim intervention order.

29 That criminal history is only relevant because it precludes you from being sentenced on the basis that you have a clear and unblemished record. On the other hand, in light of your mental health issues, that I shall shortly discuss, the fact that, in essence, you had only once come before the courts during the period of about twenty years before the current offence, is relevant both to the question of your moral culpability for the current offence, and also to an assessment of your prospects for rehabilitation.

30 I turn, then, to your personal circumstances. You were born in January 1972, being the eldest of four siblings. Your parents separated when you were seven years of age, and your mother re-partnered one year later. You did not have a good relationship with your stepfather, who, you have reported, sexually abused you when you were between the ages of eight and eleven years. You left school at the age of fourteen years. Initially, you worked for a transport company, and then you worked at a meatworks until your early twenties. At that time, you suffered an onset of mental illness, which, since then, has afflicted you throughout your lifetime. As a result, you have had no regular employment from that time, apart from some casual work cleaning and in supermarkets. Otherwise, you have been in receipt of the Disability Support Pension for more than twenty years.

31 During your late teens you formed a relationship with a young woman by whom you had a son. Subsequently, you met Ms Cousland when you were about 23 years of age. During the last twenty years, she and you have had an on and off relationship. Ms Cousland and you have a son, who has been in foster care since a very early age.

32 The most significant feature of your background concerns your mental health issues. You first had contact with Mental Health Services when you were 22 years of age following a psychotic episode, which was probably in the context of the use by you of illicit drugs. In the next year, at the age of 23 years, you were admitted to Royal Park Hospital suffering from auditory and visual hallucinations. You were treated with an anti-psychotic medication and followed up with treatment at a community health clinic at Clarendon.

33 During the next two decades, you were admitted to hospital on more than twenty occasions, including to the psychiatric units at Box Hill Hospital, Maroondah Hospital, St Vincent's Hospital and Dandenong Hospital. Those hospitalisations followed relapses in your mental health that had been precipitated in the context of you using drugs, ceasing medications and experiencing levels of stress. During the periods in which you have been unwell, you have experienced a number of symptoms, including persecutory beliefs and hearing voices. Over the years, you have been trialled on several different anti-psychotic medications, both oral and depot. In about 2010, you underwent a course of six bouts of electro-convulsive therapy. At that time, you were under the care of Eastern Health. The records of that organisation note that you had an established diagnosis of schizophrenia, alcohol abuse and possible mild intellectual disability.

34 Your most recent inpatient admission, before the offence, was when you were admitted to the psychiatric unit at Box Hill Hospital in September to October 2016 in the context of a psychotic relapse. You were discharged for community follow up with the Koonung Clinic on a depot anti-psychotic medication, combined with the oral anti-psychotic Quetiapine and mood stabilising medications. Following your discharge, you only sporadically attended the clinic in order to receive your depot anti-psychotic medication. During the period of two or three months before the offence, you ceased receiving that medication. You told Dr Adam Deacon, a consultant psychiatrist who interviewed you on two occasions in February and April this year, that you did not attend the Koonung Clinic during those months, because you felt too paranoid to leave your home.

35 Following your arrest, you were initially held in the Melbourne Assessment Prison. On your reception, you were assessed by a psychiatric nurse, who noted that while you were experiencing some feelings of paranoia, you did not report any other symptoms of psychosis. During subsequent assessments, you expressed suicidal ideas, and at one point you were transferred to an observation cell for monitoring. One month later, you were transferred to the Metropolitan Remand Centre. On review by a psychiatric registrar, you did not present with any acute signs of psychosis. Since then, your psychological condition has fluctuated. You have spent time in the St Paul's Psycho-Social Rehabilitation Unit in Port Philip Prison and also the Erskine Unit in Ravenhall Prison. As I have mentioned, at your trial in May 2019, concerns were raised concerning your fitness to stand trial. The psychiatrist, who examined you, noted an increase in your psychotic symptoms, with you suffering from auditory hallucinations and persecutory delusions. As a consequence, your trial was adjourned.

36 In August 2019, you were transferred to the Thomas Embling Hospital where you have been an in-patient during the last two years. On admission to the Argyle Unit at the hospital, you were treated with Clozapine, the anti-psychotic medication that is used in treatment resistance cases. In addition, you were prescribed Quetiapine at a high dose of 1000 milligrams a day, a depot anti-psychotic at a high dose of 600 mg per fortnight, and a high dose of mood stabiliser medication. Unfortunately, two weeks after your admission, you became physically compromised by that regime of medications. As a result, you were admitted to a general hospital for some nineteen days with a bowel obstruction and cardiac issues that were related to that problem. Following your return to the Argyle Unit, you were recommenced on Clozapine.

37 Since then, your psychiatric condition has fluctuated. You have remained symptomatic, but, according to Dr Deacon, your symptoms have reduced in their intensity. Your most prominent symptom is that you continue to experience persecutory delusions relating to staff and other patients. You have also experienced some intermittent auditory hallucinations.

38 For the purposes of the plea, you were examined by Ms Laura Scott, a clinical neuropsychologist, over a combined period of three hours on 27 July last. On testing, Ms Scott found that you have a globally reduced level of intellectual function, with a full scale IQ score of 71, which places you in the borderline range, in the lowest three percentile relative to your peers. In that context, she found that you presented with mild impairments in basic orientation, information processing speed and aspects of your memory function.

39 Your reduced level of intellectual function, combined with your long-standing history of mental ill-health, is relevant for a number of sentencing considerations which I shall discuss.

40 The first consideration concerns an assessment of your subjective culpability - that is, your personal responsibility - for the serious offence that you committed. It is not suggested that, at the time that you committed the offence, you were suffering from a bout of psychosis of the kind for which you had previously been hospitalised on a number of occasions. Ms Scott considered that, from a cognitive perspective, your impairments are relatively mild, and that any causal relationship between those impairments and the offending might seem to be tenuous. However, she considered that you are likely to be overwhelmed in a fast paced confrontation, and in such a circumstance, you would be at risk of exercising poor judgment, due to your reduced ability to plan and to your disorganised thinking processes.

41 Similarly, Dr Deacon expressed the view that there may only have been a 'limited direct' connection between your psychotic illness and the offence. He, too, considered that your condition might have caused you to be unable to think calmly and rationally, and to exercise reasonable judgment, at the time you attacked Mr Brandenburg.

42 In assessing your moral culpability, it cannot be ignored that the offence occurred in a context in which you had suffered from persistent and quite serious psychiatric illness for more than twenty years. During the period of two months that led to the incident, you had ceased receiving the depot medication, which was most important in controlling your symptoms and your responses. While, as I have stated, I am satisfied that you killed Mr Brandenburg in the course of an outburst of uncontrollable anger, I am also satisfied that, due to your long-standing psychiatric illness, and your reduced intellectual function, you did not have the capacity, that an ordinary person would have had, to think calmly and rationally, and to exercise reasonable control and judgment, so as to restrain your anger appropriately. To that extent, I am satisfied that your moral culpability - that is, your personal responsibility for the offence - was materially less than that which would be ascribed to a person who did not suffer from the same psychological problems that have afflicted you.

43 The question of your rehabilitation is particularly complex. Dr Deacon expressed the view, which I accept, that your prospects for rehabilitation, and the likelihood of re-offending, will largely depend on your capacity to gain insight, to remain compliant with your treatment, to refrain from drug use, and to avoid matters which place you under stress. It is clear that throughout your lifetime you will need to continue with treatment, and to be subject to close supervision and monitoring.

44 It would seem that since you have been an in-patient at Thomas Embling, your psychiatric condition, while remaining persistent, has nevertheless stabilised to a marked degree. Ultimately, it will be a matter for the professional persons responsible for your treatment to determine if and when you can be discharged from Thomas Embling, so that you may commence a course of rehabilitation which will enable you to safely re-enter society. For the purpose of sentencing you, I can only conclude that your prospects of rehabilitation are somewhat qualified, but they are by no means hopeless.

45 There are a number of other mitigating circumstances which I take into account in your favour. Your plea of guilty could not be described as being an early plea. Nevertheless, it is relevant, and I take into account, that you first offered to plead guilty to manslaughter on 14 May 2019, at the commencement of the first trial which was subsequently aborted. Your plea of guilty has an important utilitarian value, in that it has spared the community and the justice system the cost of a contested criminal trial. That benefit is of particular value in light of the backlog of criminal trials that have accumulated during the recent COVID-19 pandemic. There is also an additional utilitarian value to your plea. In light of what occurred at your first trial, it is problematic whether, if you had contested the charge, a trial would have been able to have proceeded to conclusion, in view of your ongoing fluctuating psychological state. The fact, that you pleaded guilty, has obviated that difficulty and has enabled some closure to be achieved in this case.

46 In addition, I take into account the fact that there has been a delay of almost four years since your arrest. While some of that delay was occasioned by choices made by you or your representatives, a substantial proportion of it was not due to any such cause. In particular, more than two years have elapsed since you first offered to plead guilty to manslaughter. I take into account that for some four years you have had, hanging over you, the prospect of a criminal trial, and the uncertainty as to your fate in the legal system.

47 I also take into account that as a result of your psychiatric condition, you have found, and will find, a term of imprisonment more difficult than the average prisoner, particularly in view of the ongoing stringent conditions that have been and are imposed by the authorities on prisoners to protect them against the current COVID-19 pandemic.

48 In determining your sentence, I have had regard to current sentencing practices. In that respect, I have been assisted by the sentencing decisions to which counsel for the prosecution have referred me, namely, R v Jones,[1] Astbury v The Queen (No 2),[2] Freeburn v The Queen (No 2),[3] Edwards v The Queen,[4] DPP v Wang (No 2)[5] and R v Dellamarta.[6] In reviewing those decisions, I bear in mind that, for any criminal offence, the range of factors, relating to the offending itself, and to the circumstances of the offender, vary significantly, so that it is never a simple task to identify the appropriate range of sentence. That is particularly so in cases involving the offence of manslaughter, which can occur in an infinite variety of circumstances. Nevertheless, the decisions to which I have been referred have, in a broad sense, assisted to indicate the current sentencing practices that are relevant in respect of the offence committed by you. As the High Court has emphasised, current sentencing practices are but one factor out of many which are relevant to take into account in the determination of your sentence.[7]

49 The principles, which apply to determining your sentence, are well established. Taking into account the seriousness of the offence committed by you, but bearing in mind my finding that your subjective culpability for that offence was measurably reduced, it is necessary that the sentence that I impose on you be sufficient to adequately express the condemnation by the Court, and by the community, of your offence, and to uphold the sanctity of human life which is the most precious value in our society.

50 Ordinarily, in the absence of the matters relating to your mental ill-health, it would be necessary that the sentence I impose on you be of sufficient severity to serve as a general deterrent to other persons, by constituting a clear message that the Court and the community will not tolerate the kind of lethal violence in which you engaged in this case. In view of your psychiatric condition, I am persuaded that the weight to be given to general deterrence in this case should to some extent be reduced. It is also important that the sentence be sufficient to protect the community, and to reinforce in you an appreciation and understanding of the seriousness of your offending, so as to deter you from engaging in any such further acts of violence on your release into the community.

51 In conclusion, as I have already stated, the offending by you in this case was serious. In view of the sustained and brutal level of violence engaged in by you, and the nature and number of injuries sustained by Mr Brandenburg, the offending by you, from an objective perspective, falls within the higher end of the range of offences of manslaughter. On the other hand, there are a number of relevant mitigating factors which I take into account in your favour. As I have discussed, I am satisfied that due to your long-standing psychiatric illness, and your reduced intellectual functioning, you did not have the capacity, that an ordinary person would have had, to think and react calmly and rationally and to restrain your anger without resorting to violence. In that way I am satisfied that your moral culpability for the offending was materially reduced from that which would be attributed to a person who did not suffer from your psychiatric condition. In addition, I take into account, in mitigation, your plea of guilty, including the offer that you made to plead guilty in May 2019, the delay in the disposition of the charge against you, and the circumstance that, by reason of your long-standing psychiatric illness, imprisonment has been and will be be more burdensome for you. I also take into account that, notwithstanding your long-standing difficulties, you only have a limited criminal history.

52 Taking those matters into account, I sentence you as follows. I sentence you to 8 years and 6 months' imprisonment. I fix a minimum non-parole period of 6 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 1,481 days (not including today's date) be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

53 As I have discussed, I have taken into account, in your favour, the fact that you have pleaded guilty. For the purposes of s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 10 years and 6 months' imprisonment with a non-parole period of 8 years.

[1] [2018] VSC 415.

[2] [2020] VSCA 158.

[3] [2020] VSCA 176.

[4] [2020] VSCA 339.

[5] [2020] VSC 884.

[6] [2021] VSC 220.

[7] DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428, 434 [5]-[9] (Kiefel CJ, Bell and Keane JJ), 453-4 [82] (Gageler and Gordon JJ).