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District Court 8 June 2012

R v Burgess

[2012] NSWDC 166

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE FORM 1 STEALING FIREARM DISCHARGE FIREARM IN PUBLIC PLACE BREACH OF TRUST

Citation: R v Burgess [2012] NSWDC 166
Court: District Court of New South Wales
Date: 8 June 2012
Judge: Berman SC DCJ

Background

The offender was a serving police officer who, in July 2011, attended the police station where he worked while experiencing active symptoms of post-traumatic stress disorder and major depression. Using his access as an officer, he obtained a colleague's Glock pistol and ammunition by retrieving keys and using bolt cutters from the tactical equipment cupboard. He then sent messages indicating his intention to kill himself and left the station with the firearm.

Police located him at a public lookout in a State Forest, where he discharged the firearm twice and spent several hours drinking heavily and placing the pistol to his head. Negotiations continued until he lost consciousness on the edge of a cliff and was taken into custody using safety lines. He was subsequently hospitalised and scheduled under the Mental Health Act.

The offender pleaded guilty to stealing a firearm under s 154D(1) of the Crimes Act and asked the court to take into account a Form 1 offence of discharging a firearm in a public place at the time of sentencing.

  • Whether a sentence of imprisonment (even if suspended) was warranted, or whether a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act was the more appropriate disposition.
  • How to weigh the objective seriousness of the offences against the offender's significantly diminished moral culpability arising from his mental state at the time.
  • What weight to give to the breach of trust inherent in an officer using his position to access a firearm.
  • The relevance of the comparable decision in R v Paris [2001] NSWCCA 83.

Decision

The court accepted that, viewed objectively, stealing and twice discharging a firearm in a public place were serious matters. However, Berman SC DCJ found the offender's moral culpability to be extremely low. The unchallenged psychiatric evidence of Dr Allnutt established that the offender was suffering from active PTSD and major depression at the time, and Dr Allnutt had even raised the possibility that a defence of mental illness might have been available to him.

The court noted several distinguishing features in the offender's favour. At no point did he threaten any other person with the firearm. When police approached him he explicitly told them he did not intend to harm them. His sole purpose in stealing the weapon was to end his own life. He had no prior criminal history and was a person of good character with a record of genuine service.

The Crown accepted that a suspended sentence was appropriate but submitted that a custodial sentence of some form was required. The court rejected that submission. Berman SC DCJ observed that a suspended sentence is a sentence of imprisonment and can only be imposed as a sentence of last resort. The court was not satisfied that stage had been reached, given the extreme circumstances of the offending and the offender's continued psychiatric treatment.

The court drew on R v Paris for assistance, noting that case also involved a person seeking to harm himself with a firearm while police intervened. The court noted that the present offender's circumstances were in some respects less serious than Paris, as he had made no threats against police and had no prior criminal history. The early guilty plea, the breach of trust element, and the ongoing psychiatric treatment were all taken into account in arriving at the final disposition.

Orders Made

  • The offender was convicted of the principal offence, with the Form 1 offence (discharging a firearm in a public place) taken into account.
  • The offender was ordered to enter a two-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act.
  • Conditions of the bond: to be of good behaviour; to appear before the court if called upon; to notify the court registrar of any change of residential address; to continue receiving psychiatric treatment from Dr Murray for as long and as often as Dr Murray considers appropriate.

Key Takeaways

  • A suspended sentence under New South Wales sentencing law is a sentence of imprisonment and may only be imposed as a sentence of last resort. Where a court is not satisfied that imprisonment is warranted, a lesser disposition such as a s 9 good behaviour bond is appropriate.
  • Severely diminished moral culpability arising from active psychiatric illness at the time of offending is a significant mitigating factor, capable of substantially reducing the weight given to the objective seriousness of the offences.
  • Breach of trust remains an aggravating factor where an offender's professional position provided the means to commit the offence, even where that offence was directed at the offender alone.
  • The District Court confirmed that R v Paris offers useful comparable guidance in cases involving police officers who attempt self-harm with service firearms, while reaffirming that the facts of each case must be assessed individually.
  • Sufficient mitigation existed here, including early guilty plea, good character, absence of any threat to others, and ongoing psychiatric treatment, to justify declining to impose any form of custodial sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 154D(1) (stealing a firearm)
- Crimes (Sentencing Procedure) Act (NSW), s 9 (good behaviour bond) and s 10
- Mental Health Act (NSW)

Cases
- R v Paris [2001] NSWCCA 83