STATE OF TASMANIA v LUKE ANTHONY BURSTON 12 JULY 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
[ADDENDUM – 22 JULY 2019]
The defendant, Mr Burston, has pleaded guilty on indictment to counts of aggravated burglary, assault, stealing and unlawfully injuring property. All of these charges arose out of one incident on 8 December 2017. The complainant in relation to all counts is a man named Mark Smith. The defendant was married at the time. He and his wife, Stephanie Cowen, had lived for a time next door to the complainant in a rural area. They then moved to a house on the complainant’s property for about two months before, in the context of a breakdown in the relationship, the defendant moved out in November 2017. A few hours before the offending, the defendant learnt that Mr Smith and his wife had commenced an intimate relationship. He dropped his wife off at her mother’s home, went to his own home, took a few ecstasy tablets – as he later told police – and drove to the complainant’s home. He also later told police that he “went there ready to fight”. The complainant was alone at his home, and had fallen asleep in the lounge room at about 10pm. The defendant arrived at about midnight. He forced entry to the house by smashing the glass panels on the front door and reaching through to unlock it. He then walked into the house. As the complainant woke up and stood to see what was happening, the defendant charged towards him and punched him with a closed fist to the right side of his face, causing him to fall backwards. The defendant yelled at the complainant. In much less polite terms than this, he asked him whether he was having sex with Stephanie and told him not to lie. The complainant denied it, at which point the defendant hit him again to the face, first with his right fist, then with his left. The defendant kept yelling at the complainant about Stephanie and hit the complainant a further six times, using alternate fists. In total, the complainant was punched about eight to nine times to the head area, and at one point the defendant kneed the complainant in the nose. Following the assault, the defendant smashed the complainant’s 52 inch television. He then stole the keys to the complainant’s vehicle, and then left. The complainant had spare keys and drove himself to the Launceston Police Station to seek assistance, from where he was taken by ambulance to hospital. At about 12.20am the next morning, the defendant went back to his mother-in-law’s house. He had blood all over him, saying that he had “fucked up”. Police were unable to locate him in the period that followed. Examination of the complainant at the hospital revealed several cuts to his face, a fractured nasal bone and nasal septum, a small cranial haematoma, a sub-conjunctival haemorrhage and mild abdominal tenderness. A few days later the defendant’s wife returned the stolen car keys to the complainant, and on Tuesday, 12 December, the defendant voluntarily went to the police station where he was interviewed. He made admissions in relation to his manner of entry to the house and as to the assault. He said the complainant grabbed him so he kneed him in the nose and thought he had broken it. He said he was on an adrenalin rush from the drugs he had taken before he arrived at the complainant’s house. When he realised what he was doing, he walked out and left the complainant lying there. He said he knew what he did was wrong but that he did not at the time, agreeing that he “probably took it a bit too far”. I have a victim impact statement from Mr Smith. He said he thought he was going to die during the attack and tried to fight back but was assaulted more seriously. He had nightmares for a time after this and woke up yelling in the night. He is still unable to sleep as he used to. He describes being sensitive to any movement around his property. He has installed an alarm with security cameras. He has become acutely conscious of locking doors and has taken many steps to ensure the security of his property. He describes his injuries as bad. His body was sore and swollen everywhere, and his head and spine particularly swollen. His jaw is still not back to normal and the webbing inside his bottom lip was torn and has not grown back. He was off work for over a month and confined to his house. He had no income during that time as he conducted his own business. He had to rely on his elderly parents to bring him groceries and to pay his bills. He was concerned at the effect seeing him had on his 7 year old son, who apparently burst into tears and would not embrace him. The child was obviously frightened. In short, he says that what had happened has affected his life in every way.
The defendant is now 28; he was 26 at the time of the offending. He has a recording history of offending but nothing relating to personal violence. He has some history of serious driving matters, having been sentenced to a two month suspended term of imprisonment in September 2009 for driving whilst disqualified. That sentence also incorporated a charge of destroying property, along with other matters. In March 2011 he was convicted of some drug offences. There is a conviction in May 2017 for injuring property in October 2015. In October 2018 he was again convicted of destroying property, committed on 17 November 2017, and which is recorded as a family violence offence. Significantly, he was on bail on that charge at the time of this offending.* For the sake of completeness, I note that in February of this year for traffic matters committed in mid-2018, he was fined and ordered to perform 84 hours of community service, 62 of which he has completed. In summary, the defendant is still a relatively young man, with drug and anger management issues, however he has not been to prison before. Further relevant personal circumstances are as follows. The relationship with Ms Cowen lasted for 11 years, for the last two of which they were married. There are three children of that relationship. Until recently, the defendant had full-time care of his 8 year old daughter, but, given these proceedings, she moved back to live with her mother. He has maintained fortnightly weekend contact with his two sons, aged 5 and 11. These arrangements have necessitated contact with Ms Cowen and the complainant, and I am told that the defendant has demonstrated that he can manage all of that maturely and calmly, although challenging for him, particularly now that Ms Cowen is pregnant with the complainant’s child. I am told that it was the combination of lack of suitable stable accommodation, the breakdown of his relationship, and the involvement of the complainant that contributed to the escalation of his drug use from a long term cannabis user. This drug use exacerbated his negative feelings and impaired his decision-making through the relevant period. The defendant accepts that this is no mitigation for him, but it is put forward to explain that his behaviour was “situational” and not demonstrative of long term serious drug use or entrenched anger management issues. At the same time, the defendant recognises his emotional volatility in challenging circumstances. After these events he sought medical advice and has been prescribed antidepressant medication by his general practitioner. His mental state seems to have improved, along with his ability to control his emotions and coping mechanisms generally. Also in his favour is that there were some signs of immediate insight and regret of his actions, and he voluntarily went to police and made full admissions without seeking to minimise his conduct. He has also pleaded guilty to all charges, something for which he is entitled to credit.
Mr Burston, your conduct has to be viewed in a very serious light. Fuelled by illicit drugs, you broke into this man’s home and severely beat him. It is fortunate that more serious injury was not caused. Your emotional turmoil may be understandable, but what you did was completely unjustifiable on any basis. Such irrational, jealous, angry and violent conduct cannot be tolerated, and must be denounced. Deterring others from similar conduct is important. The fact that at the time you were on bail for an offence for in a family violence context, did not deter you.* Imprisonment is necessary. However, there are some things which work in your favour, and I have outlined what they are. They justify the suspension of part of the term, and that will also provide an incentive to you not to re-offend. Taking all things into consideration, you are convicted of the crimes and sentenced to 18 months’ imprisonment to commence on 4 July 2019, the execution of 9 months of which is suspended on condition you commit no offence punishable by imprisonment for a period of two years. I make a compensation order in favour of Mark William Smith for an amount to be assessed, and adjourn the further of that matter to a date to be fixed.
*ADDENDUM
[On 18 July 2019, the defendant applied to vary the sentence pursuant to s 94(2)(b) of the Sentencing Act on the basis of an error of fact.]
22 JULY 2019
The comments I made on 12 July contain a factual error. Although I had been told otherwise, regrettably, for some reason I mistakenly wrote that at the time of the offending with which I was dealing, the defendant was on bail for an offence of destroying property committed on 17 November 2017, that offence being a family violence offence. I also referred to the bail order when actually passing sentence, saying that it did not deter the defendant. I simply cannot say that the error had no impact on my thinking; I am satisfied that it most likely did. Additionally, an objective assessment would produce the conclusion that it was an error that, on the face of things, could well have affected the process of arriving at the sentence passed. The issue of offending while on bail is generally seen as an aggravating factor, but it is particularly relevant to the factor of specific deterrence. It follows that the fact this defendant was not on bail at the time means there is no such aggravating factor and less focus of the need for a sentence having a deterrent effect on him. I am satisfied that the sentence should be varied. The defendant is not be punished again for it, but his offending on 17 November 2017 remains of some relevance in that it may be seen as part of a course of emotion-driven conduct involving Ms Cowen that included the present incident, so that the latter cannot be seen as a completely isolated event. Counsel for the defendant takes no issue with that. In my view, in order to properly reflect the seriousness of the offending and the factors of general deterrence, denunciation, and specific deterrence to a proper extent, immediate imprisonment remains appropriate, and the head sentence should remain undisturbed. What will be varied is the part of the sentence held in suspension. I vary the order by substituting 12 month for nine months, making the operative part six months, and not nine.