R v Burnard

Legislation Cited: Crime (Sentencing Procedure) Act 1999 (NSW) s 5
Crimes Act 1900 (NSW) s 111(2); s 154D(1)
Firearms Act 1996 (NSW) s 74(1); s 74(3)

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Chandab v R [2021] NSWCCA 186
R v Henry (1999) 46 NSWLR 346
R v Krstic [2005] NSWCCA 391
R v Najem [2008] NSWCCA 32

Category: Sentence

Parties: Rex (Crown)
Matthew Burnard (Offender)

Representation: Counsel:
S Wilkin (Solicitor) (Crown)
R Hussey (Offender)
Solicitors:
ODPP (Crown)
Rice More & Gibson (Offender)

File Number(s): 2024/236077

Publication restriction: Nil

JUDGMENT; ex tempore (Revised)

Overview

1. As at June 2024, Matthew Burnard (“the Offender”) was 30 years old. He was on conditional liberty, being a period of parole for earlier offending. He was also subject to a firearms prohibition order issued pursuant to the Firearms Act 1996 (NSW).

2. He had experienced a difficult childhood, having witnessed his father assault his mother, and having been himself seriously assaulted by his father, when he was about 10, where his father punched him and broke his nose.

3. Moreover, as a teenager, the Offender was involved in a sexual relationship with a female teacher when he was about 15 years old and she was 42 years old. This undoubtedly caused him profound, albeit delayed, trauma.

4. He had a long history of being treated for various mental health disorders, had in the past been diagnosed with bipolar disorder, and had been assessed as meeting the criteria for diagnosis of schizophrenic disorder – bipolar type – although these diagnoses have since been revised, he has a history of paranoia and has a current diagnosis of stimulant use disorder – amphetamine type substance – which is in sustained remission in a controlled environment.

5. On top of all of that, he had a long history of struggling with alcohol and drug use as an adult. His primary drug of choice since 2016 being methamphetamines.

6. He has a substantial criminal record, with many convictions over the years for offences ranging from larceny, breaching AVOs, stealing motor vehicles, aggravated break and entry, stealing a dog, destroying property, and the like.

7. On a rough calculation, he has spent approximately six of the past eight years in custody. He must be at real risk of becoming institutionalised, if that has not already occurred.

8. In June 2024, the Offender had apparently relapsed into using ice and decided to steal from the victim – Grant Hoscher – who was a long-term friend of the Offender, having known him since childhood. The victim was the Offender's former football coach and father of a schoolfriend.

9. The victim was and is a licensed firearms holder, he lived near Uralla, which is near Inverell, and had 12 firearms in his possession. He kept those firearms in a firearms safe enclosed in his workshop area. The Offender knew this, and his intention was to steal whatever guns the victim had in the safe.

10. The 12 firearms kept in the safe at the time were:

11. A Hollis and Sons side by side 12-gauge shotgun. This was stored in a cedar case which had a green velvet inlay.

12. A Miroku under over 12-gauge shotgun. This was stored in a black vinal case with three silver closing points and a red velvet inlay and a black carry handle.

13. A Winchester .270 calibre bolt action rifle (no bolt).

14. A Browning pump action .22LR.

15. A Harrington and Richardson .410-gauge shotgun.

16. A Mossberg bolt action .22 magnum rifle.

17. An IMI bolt action .22LR rifle.

18. A Winchester bolt action .22LR.

19. A Slazenger bolt action .22LR rifle.

20. A Sharp/Innova pump air rifle .22.

21. A Browning semi-automatic single barrel 12-gauge shotgun.

22. A Lithgow SMLE Mark 3 bolt action .303cal rifle.

23. On 24 June 2024, the Offender with another person entered the victim’s workshop without permission and broke into the safe and stole the firearms.

The charges

12. The Offender has been charged with and has pleaded guilty to the following offences:

| Offence | Section and Act | Maximum Penalties | SNPP | | COUNT 1 Agg enter dwelling in company intent to steal<=$60000-T1 | S111(2) Crimes Act 1900 | 14 years | No | | COUNT 2 Steal firearm -T1 | S154D(1) Crimes Act 1900 | 14 years | No | | COUNT 3 Possess prohibited firearm-subject prohibition order-T2 | S74(1) Firearms Act 1996 | 14 years | No | | COUNT 4 Possess firearm-subject prohibition order-T2 | S74(1) Firearms Act 1996 | 5 years | No | | Charges to be dealt with on a Form 1 Seq 28 (to COUNT 4): Possess ammunition subject to prohibition order-T2 - S74(3) Firearms Act 1996 |

Objective seriousness of the offending

13. The Offender is charged with aggravated entry into a dwelling with intent to steal and then stealing and thereafter possessing the firearms I have mentioned.

14. Each of these charges carries with it significant penalties, which I have already set out.

15. As far as the objective seriousness of the unauthorised entry is concerned, it cannot be overlooked that the obvious intention of the entry was to steal the firearms, which were not just of considerable value but are obviously very dangerous, and in the hands of the Offender would be possessed by a person without a licence and I have no doubt were intended by the Offender to be sold by the Co-offender into the black market for firearms for the purpose of use by an end purchaser in serious criminal activity.

16. In relation to count one, on behalf the Offender it is submitted that the value of the guns remains unknown, there was a single incursion into the shed, little damage to the property other than breaking of padlocks, and no ransacking or similar conduct was involved.

17. I accept all of those submissions. However, the simple fact is that there was a premeditated entry into the property for the obvious purpose of stealing firearms, which upon being stolen by a person without a licence, would become illegal firearms in the community.

18. I consider the objective seriousness of count one to be around the middle of the range for this type of offending. The Crown contends that it is a moderate example of this type of offending. I think that is fair.

19. In relation to count two, on behalf the Offender it is pointed out that all but one of the 12 firearms stolen were later recovered. This is true. I consider the objective seriousness of this offending to be below the middle of the range. Again, the Crown characterises it as a moderate example of this type of offending. Again, I think that is fair.

20. As to counts three and four, the Offender was subject to a firearms prohibition order when the offending occurred. He was found in possession of 9 non-prohibited firearms in direct contravention of that order (Count 4) and 1 prohibited firearm (Count 3).

21. I consider that the offending for Counts 3 and 4 is very much towards the higher end of the range of objective seriousness for these offences.

22. Against all of that is what I consider to be the significant reduced moral culpability of the Offender because of his mental health conditions to which I will come, which I think are more probably than not the consequence of his difficult upbringing.

23. When I factor that reduced moral culpability into the equation, I consider that in relation to Counts 1 and 2, the offending falls somewhere below the middle of the range of seriousness for this type of offending, and in relation to Counts 3 and 4, around the middle of the range.

Aggravating factors

24. As I have already observed, the Offender was subject to parole at the time of the offending, having been sentenced for two sets of similar dishonesty and firearm (supply stolen firearm) offences in 2018. For those offences he had been sentenced to an aggregate term of imprisonment for seven years to commence on 14 March 2018 and expire on 13 March 2025 with a non-parole period of three years, six months expiring 13 September 2021.

25. From the date of his arrest in relation to these matters on 10 July 2024, the Offender’s balance of parole was revoked, commencing 26 June 2024 and expiring 26 March 2025.

26. As I have said, the Offender also has a substantial criminal record. It is not for me to punish him again for those offences, but it does disentitle him to leniency and amplifies the considerations of general deterrence, retribution, and punishment and brings into sharp focus the important factor of protection of society.

27. As to the aggravating factors of conditional liberty and the prior criminal record of the Offender, it is important that I do not double count against the Offender those offences which gave rise to the conditional liberty, although the aggravating factor of the criminal history and the conditional liberty are quite different.

Plea of guilty

28. The Offender pleaded guilty to the offences at the first possible opportunity and is entitled to a 25% discount for that plea from what might otherwise have been his sentence or sentences. In addition, the plea of guilty is some indication, but is not determinative, as to the question of contrition and remorse.

The Offender’s subjective case

Childhood, background, mental health, and drug use

29. The Offender has been examined by Kris North, forensic psychologist, who prepared a Report dated 9 February 2025, which has been put before me.

30. In summary, the psychological opinion is as follows:

“In summary, my assessment of Mr. Burnard revealed a difficult upbringing characterised by his exposure to domestic violence and physical abuse during his youth. He was also sexually abused as an adolescent and it was my opinion his exposure to trauma had contributed to an early onset of behavioural issues in school, and subsequent offending behaviours and substance abuse from adolescence. Mr. Burnard had struggled with substance use issues and offending throughout his adulthood and it was noted he had spent six (6) of the past eight (8) years in custody. As such, concerns were also raised in relation to his risk for being institutionalised should he receive an extensive sentence.

With regard to his index offences, Mr. Burnard had accepted responsibility and expressed regret for his behaviour and acknowledged his drug use issues and his need to support his habit were his main criminogenic risk factors. He also recognised his need to engage in treatment to address unresolved trauma issues.”

31. The Offender was aged 30 years at the offending and is now 32 years old.

32. His formative years were beset with deprivation and disadvantage. I am satisfied that:

33. The Offender witnessed frequent domestic violence between his parents prior to their separation. He recalls a particular incident when he was six or seven in which he witnessed his father pull his mother’s shoulder out of its socket.

34. The Offender himself was subjected to personal violence from his father. He noted an occasion aged ten, where his father broke his nose, requiring hospitalisation.

35. The Offender also suffered sexual abuse during his teenage years, perpetrated by a female teacher at school. This abuse was ongoing and comprised of penetrative sexual intercourse. This reported sexual misconduct has been corroborated by the NSW Department of Education , and The Offender is in the process of pursuing a civil claim.

36. It is no surprise that this background of trauma provided fertile ground for The Offender’s own mental health, substance use, and addiction issues. Ms North in her Report opined as to the nexus between the same:

“It was my opinion The Offender’s experiences of both childhood trauma and sexual abuse as an adolescent had contributed to his subsequent substance use issues and he described a tendency to avoid discussing past trauma indicating he had used substances as a means of avoidance”

34. The offender’s recourse to substance use to deal with trauma explains in part his significant prior and current interactions with the criminal justice system. The Offender’s childhood adversity does allow for a considerable reduction in his level moral culpability. It also entitles him to the leniency explained in cases like Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”).

35. The Offender’s deprived upbringing, mental health issues which have led to his drug addiction all, in the circumstances, entitle him to some leniency.

36. The Offender was heavily using “ice” at the time of the offending. He was taking it four times daily. Self-induced intoxication is not a mitigating factor; however, it “may throw light on such matters as impulsivity of the offence, the existence of any alternative reason that may have operated in the aggravation of the offence and the state of mind or capacity of the offender to exercise judgment”: See R v Henry (1999) 46 NSWLR 346, per Wood CJ at 397 – 398.

37. On behalf of the Offender, it was submitted that, notwithstanding his relapse into substance use and further offending, there are positive signs that he is capable of rehabilitation. Community Corrections notes that his ‘level of engagement with supervision was overall satisfactory. He would usually attend his reporting appointments and would always present well for interviews”. The Offender also had a home together with a job at a bronze foundry during this time.

38. That being said, the Community Corrections Report also assesses the Offender as an ongoing danger to the safety of the community. This is because, at the time of the Report, he was using “ice”.

39. On behalf of the Offender, it is submitted that his sixteen-month abstinence from substance use, his enduring familial support, aptitude for employment (he is presently employed in gaol), past supervision compliance, and his insight and self-awareness into the need to earnestly address his substance addiction issues, all point towards a finding that he is capable of rehabilitation. That is true, but the prospect of that occurring must, in light of his history, be guarded.

Time in custody

40. Since his arrest on 26 June 2024, the Offender has been in custody for something exceeding one year and three months.

41. However, as I have said, he was on parole at the time and nine months and one day of that period is attributable to the balance of his earlier sentence. The total time in custody is 465 days.

42. The total time in custody solely referable to these matters is six months and seven days (191 days).

43. Any sentence of imprisonment would ordinarily be backdated to commence from 191 days in the past.

44. In addition, when I come to consider totality, I think some further backdating is appropriate. I propose to backdate any sentence of imprisonment by a further period of 109 days so that it will commence 300 days in the past.

Form 1 matter

45. The Offender invites the Court to take into account what is described as Sequence 28 for the sentence imposed upon count 4 and I have done that. Sequence 28 concerns possession of ammunition, which I do think I must take into account to slightly increase the ultimate outcome.

Resolution

46. In my view, the threshold prescribed by s 5 of the Crime (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) has well and truly been met. There must be a term of imprisonment for each of the matters before me taken individually.

47. By reference to the various relevant matters identified in s 3 of the Sentencing Procedure Act, the starting point is the objective seriousness of the criminality involved. Regardless of my finding as to the level of seriousness for these sort of offences, the fact is that each and every one of them is a very serious offence.

General deterrence

48. In relation to larceny generally, general deterrence is an important factor. The community finds it totally unacceptable for people to enter other people's premises without their permission for the purpose of stealing their belongings.

49. In relation to firearms generally, in Australia the possession of unlicensed or unauthorised firearms has long been regarded as reprehensible and totally unacceptable. Courts must be vigilant to send a clear and consistent message that such crimes will be met with stern punishment.

50. As Wilson J explained so pellucidly in Chandab v R [2021] NSWCCA 186 at [81]:

“Firearms in the hands of those not permitted to possess them, and even more so in the hands of the criminally minded who may be the subject of a prohibition order, represent a clear and profound threat to the safety of the community. No doubt for this reason ... the maximum penalty … reflects the seriousness with which the Parliament and the community view firearms offences. The rule of law and the safety of others equally are imperilled by the unauthorised possession of firearms, and such offences must be treated as serious contraventions of the criminal law — to punish offenders, to deter others, and to protect the community.”

51. To similar effect are the observations of Latham J in R v Krstic [2005] NSWCCA 391 and Hulme J in R v Najem [2008] NSWCCA 32 at [40].

52. At the time of the offending, and this I have already observed when dealing with the objective seriousness of counts 1 and 2 but is also an element of counts 3 and 4, the Offender was subject to a firearms prohibition order. He also had a history of crimes involving firearms.

53. I am satisfied beyond reasonable doubt that, whatever the Offender intended to do with the guns he stole, he did not intend them to find their way back into the community for legal use. Rather, eventually he knew that they were to be used by someone in criminal activity. This is so even though it was the co-offender who was the person who was expected to do that selling.

54. To reiterate, in relation to firearms offences generally, general deterrence must be given significant weight.

Specific deterrence/Prospects of rehabilitation/Likelihood of reoffending/Deprived upbringing

55. The Offender has a terrible criminal history. I am not punishing him for any of the matters for which he has previously been convicted, however, his record does disentitle him to leniency, and when I come to consider questions of remorse, contrition, and prospects of reoffending, his history does not weigh in the Offender's favour.

56. On the other hand, the Offender has reduced moral culpability due to his background which entitles him to leniency and the interplay between that, his substance abuse, the offending, and the fact that he has in the past become drug-free and when he has done so appears to not offend and that his offending here coincided with the relapse back into “ice” addiction, means that like so many cases that come before the Court, the Offender’s prospects of rehabilitation and not reoffending are entirely coextensive with his prospects of becoming and remaining drug-free.

57. Whilst I accept that the Offender has a real desire to become and remain drug-free, and whilst he has employment prospects and family support, if the past is anything to go by, his prospects must be guarded, although I wish you well in that regard. His engagement with Community Corrections when previously on parole is encouraging.

58. The Offender has expressed remorse, contrition and some insight in his interview with Ms North. I do not consider the fact that he is a drug addict and has reasonably significant mental health issues to be his fault. They are undoubtably both connected to, and in part caused by, the experiences he went through as a child. Whilst self-induced drug intoxication is no excuse, it does provide some explanation for why the Offender did what he did. I hasten to add that I do not consider, in any way, shape, or form, the what the Offender did was some spur of the moment idea, but rather it was obviously planned and targeted with the express purpose of stealing extremely dangerous, and in his hands illegal, firearms for ultimate use undoubtably in criminal enterprises by others.

59. His childhood experience is such as to qualify him for the leniency in cases like Bugmy.

60. As to specific deterrence, I do not think anything I do will make the slightest difference to whether the Offender changes his ways. He has to decide to change for himself. I cannot make him do that.

Conclusion

61. As to totality, all of the offending arises as part of one course of criminal conduct, and I think in the circumstances there ought to be an aggregate sentence with a significant, if not total, degree of overlap between the indicative sentences.

62. Taking into account all of the matters I have mentioned and seeking to synthesise and balance the competing factors described in s 5 of the Sentencing Procedure Act, I consider appropriate indicative sentences for each of the counts, after deduction of 25% for the early guilty plea, to be as follows:

63. Count One – 4 years’ imprisonment

64. Count Two – 5 years’ imprisonment

65. Count Three – 6 years’ imprisonment

66. Count Four – 1 year imprisonment

67. I consider an appropriate aggregate sentence, proportional to the overall criminality, to be 7 years’ imprisonment.

68. I make a finding of special circumstances. I feel the Offender and the community would greatly benefit from a longer period on parole. I say this notwithstanding that the present offending happened on an earlier period of parole which had the consequence of the Offender serving out the entirety of that term in custody.

69. Notwithstanding that history, I think the Offender should have another opportunity for a lengthy period on parole under supervision so as to enhance his prospects of rehabilitation.

70. For reasons I have explained, the sentence will be backdated by 300 days.

Orders

67. For those reasons, my orders are as follows:

68. For Counts 1, 2, 3, and 4, taking into account the matter on the Form 1 and after deducting 25% for the early pleas of guilty, I sentence the Offender to an aggregate term of 7 years, commencing on 6 December 2024 and expiring on 5 December 2031.

69. The Offender will first be eligible for parole after serving 4.5 years imprisonment, being 5 June 2029.

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