R v Bowater; R v K Burkett; R v M Burkett

District Court of NSW|2021-10-13

Ms R Suters (Counsel for Mark Burkett) File Number(s): 2020/235076; 2020/222819; 2020/222278

Judgment

On the evening of 27 June 2020, in the seaside town of Hawks Nest there was a home invasion which led to four people appearing for sentence today, Mark Burkett (48 years old), Kyle Burkett (23 years old) and John Thomas (31 years old) and Megan Bowater (32 years old). Each has pleaded guilty to the relevant offences in circumstances justifying a 25% discount on any term of imprisonment.
Each offender has pleaded guilty to one count of entering with intent to commit a serious indictable offence, in circumstances of aggravation, that is knowing persons were present, contrary to s 111(2) of the Crimes Act 1900. The serious indictable offence alleged was assault occasioning actual bodily harm in the case of Bowater, and intimidation in the case of the other three offenders. The offence carries a maximum penalty of 14 years imprisonment, with no standard non-parole period.
Mark Burkett is also to be sentenced for an offence of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act 1900. This offence carries a maximum penalty of seven years' imprisonment.
His son, Kyle Burkett, is also to be sentenced for two counts of reckless wounding contrary to s 35(4) of the Crimes Act 1900 which carries a maximum penalty of seven years imprisonment with a standard non-parole period of three years.

Agreed Facts

There is a common set of agreed facts for all four matters.
The agreed facts show that the principal victim, Mark Hughes, met Megan Bowater in May 2020. He is known by the nickname Turtle. On 27 June 2020, they travelled to the residence of his father, Phillip Hughes, in Hawks Nest. Mark Hughes had arranged for Bowater to stay at the residence and help him clean.
Kyle Burkett was friends with Bowater and Mark Burkett is Kyle's father. John Thomas was in a sporadic relationship with Bowater at the time of the offending.
It seems that the offending arose out of a misplaced grievance that Ms Bowater had been approached or propositioned by Mark Hughes, shortly after her arrival to perform cleaning and caring services. As she acknowledges rather than doing the right thing and contacting the police, she contacted her friends, which led to the offending.
On 29 June, Kyle sent a message to Bowater which read, "Megan is that Turtle cunt up there with you or do you know where he is?"
Kyle Burkett and Megan Bowater exchanged text messages discussing when Kyle would arrive. The planning for the offending is set out in some four pages of text messages exchanged between the pair between about 2:30 pm and 10:15 pm on the evening of 29 June 2020
Amongst the exchanges, Kyle said, "This gronk is fucking around. I'm going to bash him and take his car when I see him, but don't worry, I'll get there. Just going to take me a bit longer, that's all. Sorry".
Mark Burkett understood that Kyle was upset about something and he agreed to drive Kyle to Hawks Nest from the Gosford area and back again. Mark was communicating by telephone with John Thomas; Thomas travelled to the residence in his own vehicle. Thomas understood there would be some violence at the residence and he attended the residence to assist Bowater.
The messages included Kyle asking whether Hughes, the victim, had anything on him. Bowater replied telling Kyle he has got "a ball on him and a bit of pot." Kyle also asked him whether he had any guns in the house.
The motivation for the offending seems to be in the message at about quarter past three, where it says, "Hundred per cent he is. He came to me and asked me for help, then he puts it on me 24 hours after we get here and tell me it's best if I leave, 'cause I didn't put out."
Bowater asks Kyle to ensure that she can get all her stuff out before anything happens and she provides to him information about there only being one way in and out of the town, that presumably being the bridge between Tea Gardens and Hawks Nest. She tells him that "there is a little cop shop along the water before you get to the bridge" and she tells him that "they have a home phone" and Kyle says he will cut the cord.
There are messages exchanged about where the occupants were in the house at the time, around 10 pm. She said they were both sitting in the lounge room. They just went in there and his dad is in the lounge room, "Don't touch him, he's a sweet old man and he'll forget about it all", The messages continued for some time until Megan Bowater unlocked the door and let them into the house.
On Monday 29 June, Phillip and Mark Hughes were home. Bowater spent the day cleaning and took Phillip Hughes to a medical appointment.
At about 10:15 pm a neighbouring resident saw a car with Kyle and Mark outside. At about 10:30 pm, there was a knock at the door of the Hughes residence Bowater opened the door and let Kyle, Mark and Thomas in.
Kyle said to Mark Hughes, "Where's Megan?" He said, "Well she's not here, she's downstairs cleaning". Kyle said, "Have you got any money?", to which the victim said no.
The victim had never met Kyle before
Kyle punched the victim with his jumper over his hands. Mark heard an altercation upstairs and went to check on Kyle. Mark saw Kyle and the victim engaged in a fight. Mark became involved in the altercation and punched the victim. Kyle had a knife.
The agreed facts for Mark Burkett, John Thomas and Megan Bowater record that Kyle stabbed the victim seven times in the back with the knife. However, the agreed facts for Kyle Burkett read that Kyle struck the victim seven times with the knife, in the back. Mr Breeze, counsel for Kyle Burkett, reminds the court that the fault element of actual bodily harm is recklessness, and the Crown does not seem to cavil with the proposition that the presence of seven separate wounds does not necessarily mean there were seven distinct stabbings, as distinct from striking, but there were certainly seven wounds.
The knife was a grey flick knife and the blade was approximately five to seven centimetres long and had some details or holes in it.
Mark Burkett, Thomas and Bowater were not aware that Kyle had this knife until it was produced during the fight. When Bowater and Phillip Hughes came up the stairs, Phillip Hughes became involved in the fight.
Thomas was not involved in the fight.
The victim picked up a barometer of about 70 centimetres long and waved it at Kyle and Mark and at this stage Mark went back downstairs, while Kyle continued to hit the victim.
They all made their way towards the front door while Kyle continued hitting Phillip Hughes as he tried to protect his son Mark during this attack. Kyle struck Phillip, with the knife when he was in the foyer near the front door, pursuant to the agreed facts for Kyle Burkett. Although in the agreed facts for the co-offenders described Kyle Burkett stabbing Phillip Hughes.
While this attack continued, Thomas helped Bowater carry her belongings from the laundry. As Thomas and Bowater left, Kyle stopped assaulting Mark and Phillip Hughes and walked across the road.
Mark and Kyle ran down the street and got in the car and drove away, without turning on the lights and Bowater and Thomas walked up the street.
The Mark Hughes was bleeding. He attempted to follow the offenders in his car but he could not locate them. He returned home and an ambulance was called and he was taken by helicopter to the hospital. Then the ambulance returned and treated Phillip Hughes
After the offence at 11:10 pm, Kyle sent a message to Bowater which read, "Is he still alive?".
Mark Hughes was examined at the hospital. There were seven wounds examined under local anaesthetic, including six superficial wounds to the thoracolumbar back, which penetrated only to the underlying rectus spinae muscles, which were washed and closed in the emergency department, and one deep laceration to the left upper quadrant of his abdomen which penetrated through at least two layers of abdominal wall muscles with no underlying solid organ or bowel injury noted.
Phillip Hughes was examined at John Hunter Hospital and he was found to have one stab wound to the left upper quadrant of his abdomen, which was a centimetre wide and a centimetre deep, which was washed and sutured under local anaesthetic. He also had a small abrasion on the right temple and right shin and elbow.

Arrest

Kyle and Mark Burkett were arrested on 30 July. Megan Bowater was arrested on 12 August. John Thomas was arrested on 24 August.
Mark Burkett participated in an interview. He denied any knowledge of involvement with the offences or that he knew Bowater, or that he had been to Tea Gardens.
Bowater, in her interview, admitted to staying in the house. She told Police that she was under the impression that her food and board would be covered. On the evening before the incident, she claimed that the victim tried to touch her legs, and later on invited her to sleep in his bed. As for the offending, she said she did not know what happened, although she heard some commotion going on.
Thomas admitted to being at the residence in his interview and he admitted to seeing three men there and people yelling, screaming and running, but he denied any involvement with the offences.

Mark Burkett

Mark Burkett has a very lengthy criminal record extending over some 46 pages. The practical effect, as helpfully and accurately summarised in a two-page annexure to the written submissions by Ms Suters of counsel was that There was a period of relative stability between about 1993 and 1999 when Mark Burkett was in a stable relationship, otherwise it contains a lengthy litany of offences and terms of imprisonment for drug offences, shoplifting, prohibited weapons, driving while disqualified, assault police, intimidation, breaches of AVO.
Mark Burkett gave evidence today and affirmed the history set out in a lengthy statement which has been prepared in relation to a claim for damages following a sexual assault allegedly committed upon him as a youth.
The Crown does not take any issue with the history.
He says that he was still struggling with ice addiction at the time of the offending but he has it under control with regular bupe injections while in custody.
He describes a pattern of extensive drug and alcohol abuse after the sexual assaults and numerous occasions of self-harm and suicide attempts. He had been diagnosed with anxiety and severe depression and has been suffering from those symptoms for the last 15 years or so.
He has not had any regular employment since a work accident in 1999. He says that the abuse deprived him of the opportunity to become the person he aspired to be and he would have liked to have done an apprenticeship and stayed out of trouble. He displayed some insight into his background and the cause of his lifetime of regular criminal activity. There are a number of certificates which display his application to obtaining some qualifications in recent times.
He described in evidence, the difficulties occasioned by being in custody during the COVID pandemic. His evidence is consistent with evidence that the courts regularly hear, at present, as to limitations on visitation and programs and regular lockdowns, which make periods in custody more onerous than pre-pandemic.

Kyle Burkett

Kyle Burkett also has a criminal record that disentitles him to leniency and consists of a number of offences dealt with both in the juvenile courts and in the adult courts. In October 2017 there were offences of aggravated robbery, possess prohibited drug and custody of an offensive implement in a public place, which led to a term of imprisonment of two years and six months, with a non-parole period of one year and three months. He has had a term of six months for possess unauthorised firearm and control orders as a juvenile.
There is a lengthy report of a psychologist, Sam Albassit, setting out his subjective case and although the Crown Prosecutor, in the circumstances, will often take the point that the history has not been tested or adopted, no such point has been taken by the Crown here, and the Crown is content for the court to proceed on the basis of the history set out in the report, as summarising his subjective case.
In the light of an exchange between Kyle Burkett and his father, during the course of the proceedings, and in response to a specific request from Mr Breeze of counsel, I will be circumspect with the summary of the subjective case. Put shortly, it describes a life involving periods of juvenile detention, of drug abuse, drug addiction and a disadvantaged background, bringing fully into play, principles set out in Bugmy v The Queen (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58. For one so young, he has spent a total of some five years in prison, of which two and a half years has been in segregation. He was diagnosed as having a complex post-traumatic stress disorder and substance dependence for some nine years, flowing from a traumatic assault in his teenage years, which is also referred to by his mother in a letter. The psychologist prescribes an intensive program of psychiatric and psychological counselling.
His mother Leanne Paynter, also speaks in some detail of the family situation and I will not repeat that material in any detail, as requested by Mr Breeze. She has recently become a mental health worker herself and she now has some insight into the needs that Kyle has for specialist treatment to equip him with the skills and knowledge required to make better decisions and choices to avoid repeat recidivism. She has spoken to him many times over the phone and he has expressed remorse for the victims and regret for his actions and she desperately hopes that he is given the opportunity to right the wrongs of his past.
He was referred to the Catholic Homeless Care Service by the Department of Communities and Justice Housing in Gosford, due to being homeless and he presented, not surprisingly, as a very institutionalised young man, with a history of learning difficulties and behavioural challenges and the manager believes that he would have benefited from NDIS assistance, to provide him with ongoing sustainable supports in the community He found Kyle respectful and engaged while in the temporary accommodation program, which he left in April 2020 to go into long term social housing in Gosford.
His history, during his teenage years, includes periods of homelessness, where he was living on the street for approximately two years and was committing crime to survive. He said that by committing crime he would be arrested and sent to gaol, which he welcomed because he was able to secure safe and warm accommodation.

Megan Bowater

In the case of Megan Bowater, her record is much more limited, compared to Kyle and Mark Burkett. She has an offence of affray dealt with the Children's Court in 2007; supply prohibited drug with a 12-month bond, in 2011; other drug offences, possess drugs in 2015 and driving offences, together with fraud offences in February 2020.
She has not served any time in custody, apart from the period since the arrest on 12 August last year. She has been actively engaged in the remand addictions program while in custody, as shown in various certificates and her subjective case is also set out in a lengthy report of a psychologist, which is not challenged by the Crown.
She grew up on the Central Coast. Her parents separated when she was two years of age, due to her father's alcoholism. Her mother forced her to leave home at age 15 and for several years she couch-surfed, until she fell pregnant with her first son at age 17. Her son was removed from her care and she lived in various refuges for several years, and as an adult she also lived in various hostels and caravan parks.
She had a second child when she was 28. He was also removed from her care because she could not cope. She fell further into substance abuse and lived a transient lifestyle until she went into custody on this offence. She has been employed in the buy-up section while in custody and she wants to return to the hospitality industry on her ultimate release.
She had a mental health assessment some years ago and was diagnosed with borderline paranoid schizophrenia and has also been diagnosed with severe anxiety and depression. She has a history of cannabis using, progressing to ice and has had rehabilitation, both in and out of custody and she has been drug-free while in custody.
She attributed her offending to a history of substance abuse and associated dysfunction. At the time of this offending, in June last year, she was drinking alcohol daily, smoking ice and cannabis and she regrets doing it the way she did. She acknowledges that she should have notified police and she said she feels really badly about the way it turned out but she was not thinking clearly.
She was diagnosed with substance use disorder and alcohol use disorder and a significant program of treatment is recommended for her by the psychologist.

Submissions

The Crown points to a number of aggravating features.
Firstly, the offence was committed at the home of the victim or any other person. As the Crown says, these people were unknown to Phillip Hughes. They entered his residence unbeknownst to him, assaulted him and his son and this, undoubtedly, would have been a terrifying experience.
In relation to the s 111 offence, the further aggravating features are that the offence was committed in company; there was clearly an agreement between all four that they would enter together and the offence was attended with some planning. The Crown concedes it was not significant in comparison to like offending, it was not professional and sophisticated, but it was not opportunistic. It was considered and calculated, particularly given the numerous text messages revealing the degree of planning involved. I accept the objective seriousness of that offence as being mid-range, as submitted by the Crown, notwithstanding the submissions of counsel for the offenders that it was below mid-range.
In relation to the reckless wounding counts committed by Kyle Burkett, I accept that the offence involved the actual threatened use of a weapon. As the court noted in R v Shepherd [2003] NSWCCA 351 at [32], it need not involve the use of a weapon. Here both offences were committed with the use of a knife which had been brought to the premises by Kyle Burkett and it was produced during an altercation and used on two separate victims on separate occasions.
The offence involved significant wounds, as I have described and the offence was committed while he was on conditional liberty and I accept that both offences are towards the mid-range of objective seriousness, obviously, with the assault on Mr Mark Hughes being the more serious of the two offences.
As to Mark Burkett, he was also on conditional liberty at the time of the offence, which is an aggravating factor and Thomas was also on conditional liberty at the time of the offending.
As to parity, it is common ground that Kyle Burkett's role is more serious than that of his father and Megan Bowater and John Thomas. He was involved in the planning of the offences and he was the instigator of the altercation and he confronted the victims. Ms Bowater's degree of involvement was largely attributed to the planning and organisation of the offence.
As to Kyle Burkett, the Crown acknowledges that he is only 23 years of age and, despite his early entry into the criminal justice system, recognises there are always good prospects for a young offender to rehabilitate, but specific deterrence should clearly be given significant weight for this offender, having regard to his prior criminal history.
The Crown acknowledges that Mr Mark Burkett's history, while littered with violent offences, predominantly of a domestic violence nature, it does not contain any similar offences. It is acknowledged that his prospects of rehabilitation must be guarded.
As to Megan Bowater, the Crown acknowledges that her criminal history is not one with relevant matters which would limit the amount of leniency that the court would otherwise extend. The Crown acknowledges some leniency is due to Mr Thomas, due to his lack of relevant criminal history.
There should clearly be a level of concurrency in relation to the sentences imposed for Kyle and Mark Burkett, notwithstanding that they are separate and distinct offences.
I have been greatly assisted by comprehensive written submissions from counsel for Mark and Kyle Burkett and for Megan Bowater and I need not repeat, in the course of these remarks, everything that is put in those written submissions, which have been supplemented by oral submissions.
Mr Breeze points to the principles identified in R v Henry (1999) 46 NSWLR 346 as to drug addiction and the recent consideration by Brereton J in Hoskins v R [2021] NSWCCA 169 as to the application of Bugmy and Fernando principles, and those specific considerations here involve early exposure to alcohol and other drug abuse, incarceration of parents, childhood abuse and neglect, exposure to domestic and family violence, homelessness, interrupted school attendances, suspension, grief and loss and low socio-economic status.
I also take into account the mental state of the offender, leading to a reduction of moral culpability and making him an inappropriate vehicle for general deterrence, to an extent.
I accept, as Mr Breeze put, common sense and common humanity show that he is a young man with few resources to guide his decision-making process and when he was faced with the decision about how to handle this situation, he turned to the only life that he has really known, namely the criminal option. I take account of the diagnoses of complex PTSD and substance dependence disorder, depression, anxiety and stress.
While the Crown acknowledged the possibility of good prospects of success for rehabilitation, in this case, it is accurate, as Mr Breeze puts, to describe his prospects as uncertain and dependent largely on a very intensive program of care in an attempt to address drug dependency and to avoid the risk of institutionalisation. I take account of his relative youth as supporting a proposition that the court can recognise the capacity for young people to change.
In relation to Mark Burkett, I have set out, in summary form, the history of childhood sexual abuse while in juvenile custody and a life of drug abuse and mental health problems, leading to a reduction of moral culpability. I accept in relation to Mark Burkett that there should be a finding of special circumstances, due to the need for intensive supervision, due to the accumulation of sentences to be imposed, due to the difficulties imposed by the COVID pandemic and those considerations also support a finding of special circumstances for Kyle Burkett.
As to Megan Bowater, it is conceded on her behalf by Mr Hussey that the offending in company, involving entry into the victim's home, enhanced the seriousness of the offending and he acknowledges the degree of planning to which I have referred.
He summarises the subjective case as explaining her recourse to substance use and her relapse back into drug use in 2019, after her child was removed from her care. While acknowledging that any self-induced intoxication is not a mitigating factor, it does throw light on the offending and is of some relevance. A finding of special circumstances should also be made due to the need for her treatment for her mental health conditions, the need for ongoing supervision and the period on remand having been served during the COVID pandemic.

Orders

For those reasons, the orders that I will make are as follows:

Kyle Burkett 1. The offender is convicted of each offence. 2. Taking account into a discount of 25% for the plea(s) of guilty, the indicative sentences are: 1. Sequence 8: two years, six months; 2. Sequence 10: three years, three months; 3. Sequence 11: two years, three months. 1. I impose an aggregate sentence of imprisonment of three years, six months, to commence on 30 August 2020 and expiring 29 February 2024. 2. I impose a non-parole period of two years, expiring on 29 August 2022. 3. I find special circumstances.

Mark Burkett 1. The offender is convicted of each offence. 2. Taking account into a discount of 25% for the plea(s) of guilty, the indicative sentences are: 1. Sequence 3: two years, three months 2. Sequence 5: 12 months. 1. I impose an aggregate sentence of imprisonment of 2 years, 6 months, to commence on 29 January 2021 and expiring on 28 July 2023. 2. I impose a non-parole period of 16 months, expiring on 28 May 2022. 3. I find special circumstances.

Megan Bowater 1. The offender is convicted of the offence. 2. Taking into account a discount of 25% for the plea of guilty, I impose a sentence of imprisonment of two years, three months to commence on 12 August 2020 and expiring 11 November 2022. 3. I impose a non-parole period of 15 months, expiring on 11 November 2021. 4. I find special circumstances. Note - These extempore remarks were revised without access to the court file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2021

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Judgment (13 paragraphs)

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