R v Burgess [2012] NSWDC 166

District Court New South Wales

Medium Neutral Citation: R v Burgess [2012] NSWDC 166 Hearing dates: 8 June 2012 Decision date: 08 June 2012 Before: Berman SC DCJ Decision: Placed on a bond to be of good behaviour for 2 years under s 9 Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW - Sentence - Form 1 - Stealing firearm - Discharge firearm in public place - Breach of trust - Disordered thinking Legislation Cited: Crimes Act Mental Health Act Crimes (Sentencing Procedure) Act Cases Cited: R v Paris [2001] NSWCCA 83 Category: Sentence Parties: The Crown Christopher James Burgess Representation: Mr P Ramos Director of Public Prosecutions Mitchell Lawyers - Offender File Number(s): 2011/238243

Sentence 1HIS HONOUR: Christopher Burgess comes before this court in terribly sad circumstances. He is a member of the police force, although currently under suspension as a result of a number of matters, including the offence that brings him before the court today. 2He has pleaded guilty to stealing a firearm under s 154D(1) of the Crimes Act and asks that when I sentence him for that matter I take into account an offence of discharging a firearm in a public place. 3The offender committed those offences in July last year. Before that he had attempted self harm in May. Police intervened and the offender was scheduled into a mental health care facility by a police officer. He had received an authority to return to duty as a police officer in a restricted capacity. 4On 14 July last year the offender went to the police station where he had been working, gained access, through a number of means, to a firearm, a police issue Glock pistol. He also obtained access to ammunition to use with that pistol. He did this by getting keys and ultimately by using a pair of bolt cutters that he had taken from the police station's tactical equipment cupboard. Thereafter he sent a number of messages making it clear that he was intending to kill himself. He left the police station with another officer's pistol and ammunition. 5As a result of what had occurred a large scale emergency response was initiated. He was located in a public lookout in a State Forest. He was seen to be in possession of the pistol and drinking out of a bottle of Bourbon. 6Over the next fairly lengthy time he did a number of things to indicate that he was going to shoot himself with the pistol and twice discharged the firearm, once towards the valley and once into the air. 7Negotiations continued for some hours. The offender would continue to drink from the bottle of Bourbon, put the firearm to his head and wander around getting more intoxicated as he did so. At one stage he walked towards where the police were, the police called upon him to surrender the firearm, he said "I won't shoot youse, I want Kristy." He then returned back to his vehicle. 8Finally the offender went and sat on the edge of a cliff. He drank the last of the Bourbon, smoked a cigarette and sat down. He then laid down on a rock. Calls from police negotiators failed to generate any response. It appeared that Mr Burgess had lost consciousness or fallen asleep. 9The police then approached him using safety lines and he was taken into custody. The pistol was recovered, nine rounds were observed within the pistol, eight in the magazine and one in the breech. 10He was taken to Maitland Hospital where he was medically assessed and scheduled pursuant to the Mental Health Act. 11The offender's psychiatric troubles that day arise from a number of circumstances. Some of those, indeed perhaps the most important, arise from his work as a police officer. As is unfortunately the case police officers see terrible things in the course of their work. Mr Burgess was no exception. Some police officers remain unaffected by the awful things they see, but Mr Burgess was not one of those. He felt deeply the consequences of seeing things such as death and trauma. He was called to the scene of an incident where he found the body of a dead friend who had had a stroke. He was called to an incident where the person had been struck by a train. And there were other matters of that kind. 12The report of Dr Allnutt tendered to me today which was not in any way challenged by the Crown, indicated that at the time that Mr Burgess committed these offences he was experiencing active symptoms of post traumatic stress disorder and major depression. Dr Allnutt said his marital relationship had broken up, he become increasingly suicidal to the extent that it prompted committal to a psychiatric hospital and following his discharge from the hospital his wife broke up with him which probably aggravated his mental state. 13Dr Allnutt even questioned whether Mr Burgess would have available to him a defence of mental illness. By his plea of guilty, Mr Burgess accepts that he has committed the offence despite Dr Allnutt's suggestion. 14It is clearly apparent that the offender intended to harm only himself. This was not a case where he threatened any police officer with the firearm. Indeed on one occasion when he approached them he told them that he did not intend to harm them, although, of course, police who attended the scene would necessarily have concerns for their own safety given Mr Burgess' behaviour and mental state. There is nothing at all to suggest that Mr Burgess had any intention to harm anyone apart from himself that terrible day. 15As might be expected, given his profession, he is a man of prior good character. I understand that he remains as a police officer but is not serving and that he continues to receive psychiatric treatment for his condition. 16This case has many similar features to a decision of R v Paris [2001] NSWCCA 83. Mr Paris also was a person who wished to harm himself and police in that case, as in this case, intervened to prevent that happening. There are some differences and I will get to those, but the important point to note is that on a Crown appeal Mr Paris received a suspended sentence of imprisonment. He had originally got a s 10 from the late Goldring J, but that was overturned on appeal. 17But of course no two cases are identical and it is wrong to think that the case of Paris alone provides a tariff which is appropriate in this case. But because of the similarities between that matter and the present, I have regarded it as particularly helpful in determining the appropriate outcome in this case. 18In contrast to the case of Paris this offender, as I have repeatedly said made no threats against police officers nor, again in contrast to the case of Mr Paris, did he have any previous criminal history. 19Looking at this matter purely on an objective basis, it is, of course, a very serious matter. To steal a firearm and to then discharge it twice is a matter of great concern. But it must be remembered that the offender's motive in stealing the firearm was not to use it in any crime and not to use it to harm anyone apart from himself. It must also be remembered that his moral culpability at the time of this offence was very low indeed. To say that his thinking was disordered is something of an understatement. 20I should note that the offender's plea of guilty was entered at an early stage. I will not specify the discount that I will grant for that early plea and the utilitarian benefit it brings, but will state that it is one of a number of factors which has led to me imposing a sentence of a different form from that I would otherwise have imposed. 21The Crown was right to submit to me that the offence involved an abuse of trust. Mr Burgess could only gain access to the firearm and indeed only gain access to the non public areas of the police station because of his position. It is a situation where we, as a community, place our trust in police officers allowing them to carry firearms and have access to firearms and when that trust is abused, as it has been in the present case, the offences are, of course, made more serious. 22The difference between the Crown and Mr Ramos as to the appropriate outcome of this matter is, in a practical sense, rather narrow. The Crown says that a custodial sentence is required albeit concedes immediately that it would be appropriate to suspend that sentence. Mr Ramos, on the other hand, as his primary submission, making the suggestion that a s 9 bond would be more appropriate. 23As I said, in practical terms there is not a lot of difference as far as Mr Burgess is concerned. In both cases he will be on a bond to be of good behaviour and if he breaches that bond he will be back before me for resentencing. The bond will, of course, be revoked if he commits any further offences. Given the unlikelihood that Mr Burgess will commit any further offences the chances of that happening are rather remote. But that is looking at the matter practically. 24Looking at the matter legally there is a significant difference. A suspended sentence of imprisonment is a sentence of imprisonment which can only be imposed as a sentence of last resort. I am not satisfied that we have reached that stage. I am not satisfied that a sentence of imprisonment is required in all the circumstances. 25I repeat again, the offender's moral culpability was extremely low. He committed the offence of stealing the firearm only so that he could harm himself. At no stage did he threaten anyone else. In those circumstances I do not consider that a custodial sentence is required 26The offender is convicted, taking into account the form one matter, he is to enter into a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act for a period of two years. 27The conditions which apply during the term of that bond are; that he is to be of good behaviour, he is to appear before this court if called upon to do so at any time, he is to advise the registrar of this court of any change in his residential address, he is to continue receiving psychiatric treatment from Dr Murray for as long and as often as Dr Murray considers appropriate. 28Mr Burgess I just want to emphasise something to you. As you probably heard me say I do not think it is likely that you are going to commit any further offences but I say this to everyone: if you do commit a further offence you will be back before me, not some other judge, I have a practice that when I give someone a bond to be of good behaviour, if they breach that bond I am the person that deals with that. And I do that because I want to take into account, if there is a breach, the fact that I have given someone an opportunity and if they do not take advantage of that opportunity then I think it says something about their underlying character that I might have got wrong. So you understand all that? 29OFFENDER: Yes your Honour.