R v Burgess [2017] ACTSC 249

For the offence of recklessly inflicting grievous bodily harm and the property damage matter, three years and one month's imprisonment with a two year nonparole period.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - violent offences - recklessly inflict grievous bodily harm - property damage - breach of good behaviour order - offender's substance abuse - offender's desire to rehabilitate - criminal history for matters of violence - co-offenders - parity in sentencing

Crimes Act 1900 (ACT) ss 20, 116(3)

Crimes (Sentencing) Act 2005 (ACT) s 33

Legal Aid ACT (Offender)

1. On 9 June 2017, the offender pleaded guilty to the offence that, on 20 July 2016, he recklessly inflicted grievous bodily harm on Abdul Dirani, contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act) and s 45 of the Criminal Code 2002 (ACT) (complicity and common purpose). He asks that the offence of property damage, contrary to s 116(3) of the Crimes Act, be taken into account on the sentence.

2. The offender is also before the Court for breaches of three good behaviour orders imposed by the Magistrates Court. One of the orders relates to a suspended sentence.

3. The maximum penalty for an offence against s 20 of the Crimes Act is 13 years' imprisonment. The maximum penalty for a property damage offence against s 116(3) is two years' imprisonment and/or a fine.

4. Mr Burgess was committed for trial on the charges of intentionally inflicting grievous bodily harm (which carries a maximum penalty of 20 years' imprisonment) and attempted aggravated robbery. A few days before the trial was scheduled to commence, he entered a plea of guilty to the current charge.

5. Having regard to the timing of the plea and its limited utilitarian value, the offender should receive a discount of a little over 10 per cent under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

6. Mr Burgess has been in custody since 25 July 2016. The sentences will date from that day.

7. On 8 July 2016, the victim responded to an Internet dating advertisement placed by the co-offender and began exchanging emails with her. They discussed using drugs together. At the co-offender's suggestion, they began communicating by text message. At that stage, Mr Burgess was in custody and was not involved in placing the advertisement or the subsequent communication between the co-offender and the victim.

8. By arrangement, at about 8.30 pm on 9 July 2016, the victim met the co-offender at a carpark in Fyshwick. After speaking for about five minutes, the victim gave the co-offender some drugs. They agreed to speak again after the co-offender had finished work.

9. When the co-offender failed to contact the victim, he sent a number of hostile text messages to her.

10. On 19 July 2016, the co-offender informed the victim that she had broken up with her boyfriend and wanted to "hang out" with him and "get high". He agreed to meet her the following night after he finished work. On 20 July 2016, text messages were exchanged concerning drugs and payment for drugs. The victim and the co-offender agreed to meet at the Fyshwick carpark at about 6.00 pm.

11. By that stage, Mr Burgess had been released from custody and the co-offender and Mr Burgess were in a relationship.

12. The co-offender anticipated that the victim would supply drugs at the meeting, and there was some communication about her paying for drugs. The victim does not appear to have been interested in supplying drugs to the co-offender. Rather, he was interested in "hooking up".

13. The victim and the co-offender each drove to the carpark as arranged. The co-offender was accompanied by Mr Burgess. Mr Burgess' presence in the vehicle is the first point at which the evidence indicates that he was involved in the enterprise.

14. After the two cars had parked, the victim exited his car, walked towards the co-offender's car and approached the driver side window. As he did so, Mr Burgess approached him. Mr Burgess removed a heavy metal pole from his jumper sleeve, raised it and struck the victim about three times on the head and body. The victim feared for his life. While Mr Burgess was striking the victim, the co-offender called out, "[h]urry up, hurry up".

15. The victim removed a can of pepper spray from his jumper pocket, sprayed Mr Burgess and ran towards his car. Mr Burgess followed and smashed the front passenger window of the victim's car. The smashing of the front passenger window is the offence of damage property which is to be taken into account when sentencing for the principal offence.

16. The victim then drove a short distance and stopped his car in order to turn and note the numberplate on the co-offender's vehicle. He saw Mr Burgess enter the vehicle. The victim telephoned triple zero and reported the incident. At that stage, he was in great pain and was bleeding from the head.

17. The victim drove home. His housemate drove him to the Canberra Hospital, where he was triaged as a category three patient (a patient with a potentially life-threatening condition or one who could experience an adverse event if not treated within 30 minutes). He was diagnosed as having a depressed fracture of the left parietal skull, scalp lacerations and other soft tissue injuries. Depressed skull fractures can result in damage to the underlying structures of the brain. Fortunately, in this case, the fracture was small. Subsequent investigations have yielded normal results and there is no clinical evidence that the victim has suffered a brain injury. The victim's lacerations were sutured.

18. A victim impact statement was read to the Court. The Court acknowledges that the victim suffered very significant injury and experiences substantial ongoing disabilities.

19. From a psychological perspective, he was very shocked by the incident. Over the ensuing days, he started experiencing flashbacks about being struck with a metal pole. There was interference with his sleep.

20. In the medium term, he continues to experience anxiety. Understandably, he avoids going to strange or dark places, is anxious about meeting new people and finds it difficult to trust people. While there was no expert evidence on this matter, I infer that the victim's psychological problems may continue for some time and to some extent, may permanently affect the victim. The incident was shocking and frightening, and it would be expected that anyone in the victim's position would experience ongoing psychological consequences.

21. As has been observed in a number of cases, the objective seriousness of a particular s 20 offence is to be assessed by reference to its two components: the conduct of the offender (and the associated degree of recklessness) and the nature of the grievous bodily harm to the victim: R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34; R v Smith [2016] ACTSC 330; R v EL [2016] ACTSC 241.

22. The injury suffered by the victim was serious, but it was not the worst type of grievous bodily harm, bearing in mind that for any injury to amount to grievous bodily harm it must be a really serious injury. That is in no way to diminish the fact that the victim suffered a very serious injury.

23. Mr Burgess's conduct was objectively very serious.

24. Unlike many offences of this type, which are frequently committed on the spur of the moment, this offence was planned; at least from the time that Mr Burgess and the co-offender travelled to the rendezvous point. It was committed in company, a weapon was involved, and the victim was struck several times.

25. It would appear that the motive of both Mr Burgess and the co-offender for committing the offence was to obtain drugs from the victim without paying for them. Both were heavy drug users at the time.

26. At one stage, Mr Burgess, attempted to justify his involvement by saying that the victim had been trying to take advantage of the co-offender. That is an odd justification, given the criminal offences (to which I will refer later) that Mr Burgess has committed against the co-offender.

27. At the time of the offence, Mr Burgess was 40 years old.

28. He has a criminal history, including matters in New South Wales and Queensland. The most relevant part of the criminal history is a series of offences committed in the ACT between May 2013 and January 2016, the majority of which were committed against the co-offender. Some of the offences were quite serious. They include an offence of damaging property, a number of offences of common assault, one offence of assault occasioning actual bodily harm and three offences of contravening a protection order. The offences of contravening a protection order resulted in the good behaviour orders that have been breached, and for which I am to deal with the offender today.

29. The offences are relevant in two ways. First, they establish that the offender has a criminal history for matters of violence. In relation to the matter of recklessly inflicting grievous bodily harm, he is not entitled to the leniency which might have been extended in the absence of a criminal history for matters of violence. For better or worse, the offences of violence which he has committed have all been directed at the same victim; the co-offender. The second way in which Mr Burgess' criminal history is relevant is that it provides important background material to understand his relationship with the co-offender.

30. Mr Burgess has spent relatively brief periods in custody in relation to his prior criminal history. Between 10 January 2016 and 9 July 2016, he spent a period of about six months in custody. That seems to be the longest period that he has spent in custody in relation to other matters. Since 25 July 2016, he has been in custody in relation the matters now before the Court. At the time that he committed the s 20 offence, Mr Burgess had been out of custody only for a very brief period and was subject to conditional liberty. This is an aggravating feature of the offence.

31. Mr Burgess left school in Year 9. His work history includes employment as an engraver, slaughterman and most recently, in 2014, as a yardman. When he is released from custody, he intends to work as a labourer for his adult daughter's partner.

32. As mentioned, at the time of the offence Mr Burgess was in a relationship with the co-offender. The couple lived in a de facto relationship for about four years and separated in October 2016. The relationship was marred by significant domestic violence.

33. Mr Burgess and the co-offender have a three-year-old son and a young daughter. Their son is now in the care of his maternal grandparents. Mr Burgess has two adult children of previous relationships. He is motivated to engage with his younger children, but understands that he will need to rehabilitate if that is to occur. He has a new partner with whom he intends to reside upon his release. There is no suggestion that she is involved with drugs or antisocial behaviour.

34. At 14 years of age, Mr Burgess commenced intravenous amphetamine use. For most of his adult life, he has abused substances, most commonly methylamphetamine and amphetamines. When he was released from custody in July 2016, his drug use quickly escalated, resulting in the commission of the offence only about 10 days after his release.

35. Since his return to custody, Mr Burgess has, seemingly for the first time, shown a desire to rehabilitate. He recently graduated from the Solaris Therapeutic Community at the Alexander Maconochie Centre (AMC). He has prepared a relapse prevention plan indicating his commitment to rehabilitation. In that plan, he acknowledges that it will be very difficult for him to reintegrate into the community upon his release. It is important that he has gained that understanding, given what occurred on the last occasion when he was released. Other indications of rehabilitation during his recent period in custody are that he has been engaging in regular physical fitness activities in the AMC. He has undertaken an anger management course and a course on managing stress and anxiety. Of recent times his disciplinary record has been good.

36. Mr Burgess reported a previous diagnosis of bipolar mood disorder, although there is no expert evidence in relation to that. In July 2016, a psychiatric assessment undertaken in the AMC noted that he had high levels of anxiety and anger. As mentioned, he has recently completed anger and stress management programs in the AMC.

37. When speaking to the author of the presentence report, Mr Burgess expressed regret, accepted full responsibility for the offences and said that he was willing to accept the consequences of his behaviour. At one stage, he had engaged in "victim blaming", but he now has a more mature insight into his conduct.

38. Mr Burgess has been assessed as at a medium to high risk of general reoffending, due primarily to his history of substance abuse, violence, antisocial peer associations and lack of employment. He requires further intervention in relation to his use of violence, substance abuse, employment needs and any mental health needs that he may have.

39. Considerations of parity are important when sentencing. There is some distinction in the objective seriousness of the offending conduct of the two offenders. Mr Burgess was the direct perpetrator of the violence and he struck the victim three times. On the other hand, although her role was different, the offence committed by the co-offender was also objectively serious

40. There is a greater distinction between the offenders when it comes to their subjective circumstances. These include the considerable age difference, the nature of the relationship between the two (in which Mr Burgess was not only the older, but also the controlling partner and engaged in domestic violence) and the serious traumas experienced by the co-offender in the period leading up to the offences. Mr Burgess was on conditional liberty and had only just been released from custody at the time that he committed the offence. That consideration does not apply to the co-offender.

41. Another important distinction is the fact that pursuant to s 33 of the Sentencing Act, the Court can take into account the effect of imprisonment on dependants. The co-offender is the sole carer for the couple's four-month-old daughter and is also very significantly involved in the life of their son.

42. Most of these differences in subjective circumstances are best accounted for in the manner in which the sentence is served, rather than its length.

43. The sentencing purposes that are relevant for both offenders are adequate punishment, accountability, denunciation, recognition of harm to the victim and rehabilitation. Additionally, in the case of Mr Burgess, personal deterrence is an important sentencing consideration.

44. In the case of Mr Burgess, I am satisfied that a significant sentence of fulltime imprisonment is the only appropriate penalty given the objective seriousness of the offence and the subjective circumstances of the offender.

45. I find that each of the good behaviour orders has been breached.

46. In relation to the good behaviour order to which the suspended sentence is attached, the good behaviour order is cancelled and the offender is resentenced to nine months' imprisonment to run from 25 July 2016 to 24 April 2017.

47. In relation to the other good behaviour orders, given the penalty imposed for the suspended sentence matter, I take no action.

48. In relation to the offence of recklessly inflicting grievous bodily harm, taking into account the property damage matter, from a starting point of three and a half years' imprisonment I deduct about 10 per cent to arrive at a sentence of three years and one month's imprisonment, which will run from 25 December 2016 to 24 January 2020.

49. In relation to the nonparole period, some weight should be placed on the prospect of rehabilitation and the offender should be given the opportunity to demonstrate his capacity in that regard. His limited criminal record, age, recent commitment to rehabilitation and the fact that, despite being in his early 40s, this is the first significant period that he will have spent in custody, suggests that a relatively short nonparole period should be imposed. I fix a nonparole period of two years, to run from 25 July 2016 to 24 July 2018.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.