R v Burns

[2024] NSWDC 191

District Court of NSW|2024-03-28

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-03-28

Catchwords

(2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37
[2010] NSWCCA 194 Green v The Queen [2011] HCA 49
(2011) 244 CLR 462 Hamzy v R (1994) 74 A Crim R 341 Jadron v R [2015] NSWCCA 217 Magaming v The Queen [2013] HCA 40
(2013) 252 CLR 381 Markarian v the Queen (2005) 228 CLR 357 Mill v The Queen [1998] HCA 70

Source

Original judgment source is linked above.

Catchwords

(2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37[2010] NSWCCA 194 Green v The Queen [2011] HCA 49(2011) 244 CLR 462 Hamzy v R (1994) 74 A Crim R 341 Jadron v R [2015] NSWCCA 217 Magaming v The Queen [2013] HCA 40(2013) 252 CLR 381 Markarian v the Queen (2005) 228 CLR 357 Mill v The Queen [1998] HCA 70(1988) 166 CLR 59 Nasrallah v R [2021] NSWCCA 207 Postiglione v The Queen [1997] HCA 26171 A Crim R 267 R v HolderR v Johnston [1983] 3 NSWLR 245 R v MJB [2014] NSWCCA 195 R v Simpson [2001] NSWCCA 534

Judgment (26 paragraphs)

[1]

Stanton v R [2021] NSWCCA 123 Van Ryn v R [2016] NSWCCA 1 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629 Category: Sentence Parties: Beric Andrew Burns (the offender) Public Prosecutions (NSW) (Crown) Representation: Counsel: R Pontello SC (for the accused) C Todd (for the Crown)

[11]

Large commercial supply

When the matters were in the Local Court it was agreed that for each large commercial supply, all the Figg transactions should be rolled-up into one count, and all the transactions, except those involving Ellerman, be rolled up into another.
Large Commercial Quantity for the Prohibited Drug methylamphetamine is 500 grams. There is no upper limit. This accumulation of drug quantities from multiple transactions was entirely appropriate. It was accepted by the defence: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217. It is axiomatic that rolled up quantities involve a series of criminal acts. But care must be taken not to double count aggravating features such as s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW). Although the number of occasions the drugs were supplied, and the nature of the supply operation remain relevant considerations.
There is an advantage to an offender in the use of a rolled-up charge. It restricts the maximum available sentence for the single offence rather than the total theoretically available maximum sentences for a multiple charges. The disadvantage here is that as the quantity of drugs exceeded the large commercial figure it puts it in the life sentence range with a higher standard non-parole period.
That said, in any sentencing exercise the whole of the conduct of the offender must always be considered regardless of how the charge or charges come before the Court. All of the conduct encompassed in the rolled-up charges is relevant: R v Glynatsis [2013] NSWCCA 131 at [68].
Some of the drugs were seized and thus were not able to be distributed, but most of it was. The role of the offender is very relevant to my assessment of the objective seriousness of each offence and its location in some notional range of seriousness. I have to consider here that he contributed financially to the costs of setting up the operation, he stood to, and did make, a distinct profit as distinct from other cases where payment for services rendered are made. It was his operation, he managed it. He had a decision-making role.
Here, as the Crown submit, Burns played a major role in providing product for others to distribute to our community - mainly methylamphetamine, but to a less extent, cannabis. The drugs were distributed for profit, that is for greed, as the proceeds offence demonstrates.
His application of the profits of this activity were directed initially to the purchase of quantities of drugs for on-sale. He chose to involve himself in the distribution of drugs in our community knowing full well the damage that was being done. He had had a long-standing problems with drugs. Drug use had blighted his life from when he was young, but he played this important role in distribution of the drugs to other users.
In total about 1.3 kilograms of the methylamphetamine was sold over the 4-month period. Burns operated alone with some limited assistance from his then partner, Consigli. His business was not particularly sophisticated. He was not part of a cartel. But he did have access to considerable amounts of the drug and he provided it to a number of buyers, who then took the risk of distributing that drug at street level across New South Wales. He took his cut of the considerable profits illicit supply can make. His actions, as is obvious, were clandestine.
The seriousness of this retail distribution lies in part in its contribution to the servicing and the maintaining of the market for the drug methylamphetamine. This market in turn provides the economic incentive for the manufacture of the drug at bulk and wholesale levels, and then distribution to streel level users.
While I do not distinguish between the type of drugs, when I come to the cannabis, I note that cannabis falls into a different category, given the penalty ranges fixed by Parliament.
The amount of profit generated remain important factors. It bears repeating that the sale of illicit drugs causes considerable harm, not just to those who use it but to the community in general. Crimes are committed by those who seek to obtain funds for drugs, family life is destroyed, and personal lives are destroyed. The funds obtained fund other crimes. There is thus a community interest in appropriate and just punishment for such offences.
I accept that the offender voluntarily stopped offending. This is generally, and here, a matter of mitigation: R v Burns [2010] NSWCCA 279. But sentencing considerations often point in different directions. Burns only stopped supplying after he achieved the profit, the 'nest egg,' he set as his goal.

[12]

Proceeds

The maximum penalty is 15 years. A broad range of offences are contemplated by the section. A number of matters that must be considered when assessing objective seriousness: Ramos v R [2018] NSWCCA 206. I have to take into account; how the funds were obtained; the manner of dealing that led to the funds, the subject of the offence; and any planning or sophistication involved.
Here as the Agreed Facts reveal there was the storage unit, it was organised and clandestine. The underlying criminal conduct here is also a matter for sentence; it thus raises questions of totality and the need to avoid double counting. And of course, I take into account the amount involved.
The harm that could be occasioned was nipped in the bud by the seizure of the money. Here the money appears to represent the profits of the drug supply business run by Burns with Consigli. He aimed to achieve a financial gain and set them up for the future. This seems to be the critical reason he engaged in, and then stopped, offending.
The offence of money laundering is intended to ensure that criminals do not retain the proceeds of their criminality and, in addition to the crimes that generated them, are punished for the criminality that is represented by the possession of those proceeds. It would be quite wrong for an offender to escape that additional punishment in respect of possession of the proceeds of crime: R v Burns at [27]. But that said, care must be taken not to double count against the offender matters common to both the supply and the retention of the funds generated as profit from that supply.
In summary, while I must assess each individual offence and indicate a sentence in relation to each, the general principles noted above apply to each. The individual charges, however, were the product of charge negotiation and prosecution discretion.
Ultimately, I must determine on a sentence that reflects not just the objective seriousness of each matter, but all the purposes of sentencing. I must then synthesise an aggregate sentence that is just and appropriate for the totality of the offender's crimes, taking into account also the case made for him: Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.
Here, each case was part of criminal activity organised by Burns. It endangered community safety on a number of levels. Each case can be distinguished from the other, primarily by the amount subject of the single or rolled-up transactions, noting that this distinction also delineates the penalty range as the other general principles apply to each of them.
I note the large commercial quantity amount was; 1. only reached by rounding up; and 2. is at the very bottom of what is an open-ended range that can, and often does, involve many kilograms of the drug.
I also note that the commercial supply was similarly just over the minimum 250 grams that fixes the penalty range.

[15]

Criminal record

Burns appeared before the Children's Court on a number of occasions. He spent time in juvenile detention. He first appeared before the Local Court in 1986. Between 1986 and 1995 he appeared regularly before the Local Court NSW and the Magistrate's Courts in Queensland.
A pre-release report, Exhibit A, Tab B, notes Burns attributed his history of antisocial crimes to; illicit drugs use; antisocial lifestyle; and poor choice of associates. There was a significant reduction in the frequency of his offending between 1995 and 2005, and then nothing until 2013. That period, he told the parole officer, coincided with him completing a drug rehabilitation program and then abstaining from using illicit drugs.
In 2013 he was arrested for a commercial drug supply offence and eventually sentenced to 8 years 3 months imprisonment. A substantial finding of special circumstances was made. He told a parole officer in 2019 that after a back injury, he had commenced using drugs again to self-medicate. He said this drug use, associated gambling, and the fact he was living well beyond his means, led to that offending.
Burns was released to parole on 4 May 2019, after serving a minimum 4 years and 10 months. His pre-release report was very positive, noting he had engaged in drug relapse prevention activities and contributed in other ways during his time in custody. His response to working in gaol at that time did not attract good reviews, however.
He was released voluntarily into a residential rehabilitation program. He successfully completed it in March 2020. He was still on parole at the time he committed this offence, an aggravating fact that must be taken into account on sentence. His parole was breached, and he served the balance of parole from the date of his arrest, 16 December 2022 until 14 October 2022, a period of 10 months.
During this period in custody, he has had no gaol discipline infractions.
The offender's criminal history is relevant to determining the proper sentence. It indicates that this offence was not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offences here, a more serious penalty is warranted. That penalty must have additional focus on retribution and deterrence and the protection of society: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477].
I have the pre-release report prepared in 2019 and the breach report from 2001. Burns' parole was breached because of this offending. His parole supervisors thought that he was responding well. Obviously, he was lying to them.
As I have taken into account the commission of these offences while on parole as an aggravating feature, it would be wrong to additionally punish Burns by dating the sentence from when his parole expired. Restraint is particularly required here as the early part of his time on remand was subject to COVID-19 restrictions which made his time in gaol even harder than it would otherwise have been. I propose to commence this sentence 3 months after he went into custody on 16 March 2022.

[16]

Subjective case

Most sentencing proceedings, particularly in busy regional courts, do not involve some general joinder of issues between prosecution and an offender. Calling and testing evidence is required if an asserted fact is controverted or if a judge is not prepared to act on an assertion.
Here the subjective material was not supported by evidence formally on oath, but it was relatively uncontroversial. Burns provided an affidavit, but the Crown indicated fairly that Burns would not have been challenged had he been called. Burns did not seek in that affidavit to undermine the objective facts, the subject of the Agreed Facts before the Court.
I have the benefit of a report from a respected psychologist, Dr Lennings; a report of Associate Professor Robinson prepared for compensation proceedings in relation to the offender's abuse in juvenile detention; documents relating to childhood trauma; an apology letter from the Director General of Community Services in relation to that abuse in juvenile detention. There are also Justice Health assessments in relation to his chronic liver condition; and personal references from people who are dealing with him in gaol.
Burns' affidavit does not address the objective circumstances of his offending. In it, he adopts the history he gave to Dr Lennings, and with an inconsequential correction, what was said and recorded by Professor Robinson.
He was born in 1968. He is now 55. He sets out in summary what he describes as a "tough childhood". His father died when he was very young. He was exposed to domestic violence by his mother's partners. He left school early. As a teenager he spent time in juvenile detention where he suffered sexual abuse. At times he has been able to work, and work hard. He has played rugby league, but a drug addiction acquired while he was a teenager has blighted his life until relatively recently. That addiction is reflected by his criminal record.
He has had five years of sobriety with the help of Narcotics Anonymous and a committed sponsor.
He is presently settled at the Macquarie Correction Facility and able, mostly, to manage his diet required by his chronic liver problems; which he may have for the rest of his life. Macquarie is a privileged gaol, and he has earned the right to be there.
He is actively engaged in work and programs. He has solid plans for his future and is utilising his time in custody well.
He spent the early part of his time on remand subject to COVID-19 restrictions, a matter that must be taken into account in reduction of penalty. Prisoners have no control over their lives during the restrictions, and they significantly increased the impact of loss of freedom caused by imprisonment.

[19]

Moral culpability

An offender who had the start in life that Burns had does not bear equal moral responsibility with those who might be determined to have a 'normal', or an 'advantaged' upbringing. His background has left a mark, it has compromised his capacity to learn from experience, as Dr Lennings' Report makes clear. Those effects do not diminish over time and will be given full weight in determining the sentence: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [43].
Burns has been diagnosed Post-Traumatic Stress Disorder, which developed when he was very young. That condition too, leads to amelioration of his moral culpability. It reduces the need for general deterrence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. It will also add to the burden of custodial sentence, although as Dr Lennings notes, paradoxically the custodial environment is providing him with a settled way in which he can adjust to his longstanding problems.
Dr Lennings was asked to address the key factors derived from a helpful summary provided McClelland J in De La Rosa. Dr Lennings noted Burns presents with "multiple mental health and potential cognitive issues" relating to a number of head knocks he received. As a consequence, he will be more "vulnerable than [a] typical offender in gaol." He notes, "Burns appears strongly motivated to use his time in gaol to 'work on himself' and to be a better person."
Dr Lennings went on however to say that the "long period in gaol, following so closely [on] from his lengthy incarceration … 2013 to 2019 increases the risk of institutionalisation". Burns requires trauma related therapy. But, as Dr Lennings' points out, given the violence endemic to our prison system, there is a potential for re-traumatisation.
Burns will need help from a forensic psychologist to develop some insights into his offending. While psychologists are available to prisoners in custody, there are long waiting lists. He also requires formal psychotherapeutic intervention. Dr Lennings, who has long experience dealing with those in custody, notes that it is likely this treatment need will go unmet until his release. Dr Lennings suggests that a sentence that maximises his time in the community would be most beneficial to Burns' rehabilitation.
Dr Lennings and Professor Robinson also set out in detail the impact of the sexual offending on Burns. I will not go into details, but I have had a chance to review their reports. A sexual assault can have a profound and highly detrimental impact on a child assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67]; Nasrallah v R [2021] NSWCCA 207 at [100]-[102].
This is one of the reasons why significant penalties are imposed on those who offend against children. Such impacts are relevant by way of mitigation on a number of levels.
A court does not devalue the impact of the traumatic events detailed in the reports, and the destructive impact of those events on the adolescence of this offender. A person's background is always relevant and here it can help explain why as a young person the offender took up illicit drug use and crime. It also helps me understand the impact of the related Post-Traumatic Stress Disorder.
I have referred to matters that reduce this offender's moral culpability. I include the effects of childhood deprivation; exposure to domestic violence; life on the streets; childhood trauma; being the victim of sexual assault; and mental health issues: Bugmy; Nasrallah v R; De La Rosa at [177]. Often these matters are interrelated, sometimes inextricably so. This case is an example where all are present, and all must be taken into account. Even in the face of entrenched recidivism, his subjective case does allow for some mitigation of; the sentences to be indicated, the total sentence. It will be taken into account in the structure of the sentence by a finding of special circumstances.

[20]

Parity

Drug distribution businesses or networks do not come with organisational charts. The courts do from the best we can. There is no indication here that Burns was part of any syndicate. Rather, he saw an opportunity to obtain and distribute drugs and make a profit. He had a willing provider and he had willing customers. Two of those customers have been sentenced by other judges. I sentenced Consigli: R v Consigli [2023] NSW DC 194.
List judges, such as myself, try as best we can to have all related offenders dealt with by the one judge. But that is not always possible.
I have had the benefit of reading the material about the other co-offenders put before me in Exhibit A. This sentence must be determined having regard to the circumstances of the co-offenders and their respective degrees of culpability - "like must be compared with like." However, different personal and criminal histories, and different involvement in offending or different offences can "justify a real difference in the time [a person] serve[s] in prison": Postiglione v The Queen.
The principle known as parity applies. It is a classic example of the need, so far as is possible, to ensure equal justice: Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at [51]; Postiglione v The Queen; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.
I have my sentencing remarks for his then partner Consigli on 12 April 2023: R v Consigli. I have Judge Abadee's sentence of Figg of 2 June 2023: R v Figg [2023] NSWDC 194. And I have Judge Musgrave's sentence of Ellerman on 6 June 2023: R v Ellerman (District Court (NSW), 16 June 2023, unrep). I note that Judge Musgrave and Judge Abadee did not have the benefit of the others' sentencing remarks.
Each other offender had different subjective circumstances. Each received a 25% reduction for the utilitarian value of their guilty pleas. Each received aggregate sentences. Each were sentenced for their corresponding roles which relate to only parts of Burns' criminal activity. Consigli was sentenced to 2 years, 6 months, non-parole period 1 year, 3 months. Figg was sentenced to 6 years and a non-parole period of 4 years. Ellerman was sentenced to 8 years with non-parole period of 5 and a half years.

[24]

Instinctive synthesis

A moment's consideration will show that the detailed material produced to the Court by the Crown and the defence give rise to a number of competing considerations of some complexity. Facts can point in one direction when one considers one aspect of sentencing, and a different direction in relation to another.
Here it is accepted that the offender has, during his time on remand, demonstrated significant progress towards rehabilitation. It is accepted that after the lengthy time in custody his crimes demand he will need assistance and monitoring in order to do so. He must be tested in the community because, as the Crown point out, I must be very guarded because he has previously failed those tests.
In matters such as this, which involve significant dealing in illicit drugs for profit, the community expect that adequate punishment should be sufficiently severe to deter this offender, as it has failed to do in the past, and more particularly deter others from doing what he did. But Burns must be released into the community. If his sentence has the effect of discouraging or impeding his process towards rehabilitation, the community may not be protected from future crimes.
Burns is, at present, highly motivated to improve himself. Motivation is important. Too severe a sentence could result in a disproportionate level of punishment. That could operate to increase risk of community safety on release. This can arise if he becomes institutionalised by serving a long sentence, or if the value of any steps already taken diminish over time. The sentence should not destroy hope of normal life after the end of his imprisonment. What is a proportionate sentence, however, can depend on the perspective of the observer, whether they are the offender himself, the community, or the appellate courts: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [26]-[45] (Basten JA).
Ultimately, my duty as a sentencing judge requires an attempt to take all of these matters into account, translate the complexity of the human condition and human behaviour and reduce them to mathematics of punishment: Weininger v The Queen (2003) 212 CLR 629, at [24].

R v Burns

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Judgment (26 paragraphs)

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Cases Cited (35)