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District Court 13 October 2021

R v Bowater; R v K Burkett; R v M Burkett

[2021] NSWDC 618

Assault & violenceTheft & property

Citation: R v Bowater; R v K Burkett; R v M Burkett [2021] NSWDC 618
Court: District Court of New South Wales
Date: 13 October 2021
Judge(s): ML Williams SC DCJ

Background

On the evening of 29 June 2020, four offenders carried out a planned home invasion at a residential property in Hawks Nest, a coastal town in New South Wales. The primary targets were two men, a father and his adult son, at whose residence one of the offenders had been staying as a cleaner. The invasion arose from a grievance held by that offender, who chose to contact associates rather than police after a dispute with one of the occupants.

The planning was extensive. Over several hours before the offending, two of the offenders exchanged text messages coordinating the attack, discussing the victim's movements, whether he had weapons or drugs, the layout of the town, the location of the local police station, and the intention to cut the telephone cord. One of the offenders drove another from the Gosford area to Hawks Nest; a fourth travelled separately. The door was unlocked from the inside to admit the group.

Once inside, violence escalated rapidly. One offender punched the principal victim, another became involved in the altercation, and a knife was produced and used to inflict seven wounds. The principal victim was transported to hospital by helicopter. His elderly father, who intervened to protect him, was also struck with the knife.

  • What sentences were appropriate for each offender, having regard to the objective seriousness of the offending, the multiple aggravating factors, and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999?
  • How should the differing levels of moral culpability among the four co-offenders be reflected in sentence, with appropriate attention to parity?
  • Whether special circumstances existed for any offender justifying a variation from the standard ratio between the non-parole period and the balance of sentence.
  • What weight should be given to subjective factors including drug addiction, mental illness, intoxication, and the conditions of custody during the COVID-19 pandemic?
  • How should the commencement dates for each sentence be fixed, accounting for time already spent in custody and any concurrent custodial obligations?

Decision

The court identified multiple statutory aggravating factors applying across the offending: the attack occurred in the victims' home, the offenders acted in company, the offending was planned and organised, a weapon was used, and at least some offenders were on conditional liberty at the time. These features elevated the objective seriousness of the home invasion charges considerably. The maximum penalty of 14 years imprisonment for entering with intent in circumstances of aggravation (s 111(2) of the Crimes Act 1900) served as an important yardstick.

Culpability varied among the offenders. The offender who wielded the knife and inflicted seven wounds bore the greatest objective criminality, and his additional charges of reckless wounding (carrying a maximum of seven years with a standard non-parole period of three years) were sentenced accordingly. His father, who drove the group to the scene and participated in the physical altercation, faced a charge of assault occasioning actual bodily harm in company in addition to the home invasion count. The organiser of the invasion, who unlocked the door and provided detailed intelligence to the others, was sentenced on the home invasion charge alone. A fourth co-offender (John Thomas), whose matter was adjourned for a Sentence Assessment Report, was not sentenced that day, with the Crown not opposing an Intensive Corrections Order in his case.

Each offender received a 25% discount on their sentence for their guilty plea. Self-induced intoxication was noted as not a mitigating factor in its own right, though it was accepted as throwing some light on the offending. The court made findings of special circumstances for all three offenders sentenced on the day. Those findings reflected the need for mental health treatment and ongoing supervision, the fact that remand periods were served during the COVID-19 pandemic (which affected prison conditions), and in the case of the knife-wielder, the need to structure an appropriate ratio across aggregate sentences for multiple offences.

Orders Made

Kyle Burkett (knife-wielder; two counts of reckless wounding, plus home invasion):
- Convicted of each offence
- Indicative sentences: Sequence 8: 2 years 6 months; Sequence 10: 3 years 3 months; Sequence 11: 2 years 3 months
- Aggregate sentence of 3 years 6 months imprisonment, commencing 30 August 2020, expiring 29 February 2024
- Non-parole period of 2 years, expiring 29 August 2022
- Special circumstances found

Mark Burkett (assault occasioning actual bodily harm in company, plus home invasion):
- Convicted of each offence
- Indicative sentences: Sequence 3: 2 years 3 months; Sequence 5: 12 months
- Aggregate sentence of 2 years 6 months imprisonment, commencing 29 January 2021, expiring 28 July 2023
- Non-parole period of 16 months, expiring 28 May 2022
- Special circumstances found

Megan Bowater (home invasion):
- Convicted of the offence
- Sentence of 2 years 3 months imprisonment, commencing 12 August 2020, expiring 11 November 2022
- Non-parole period of 15 months, expiring 11 November 2021
- Special circumstances found

Key Takeaways

  • Multiple aggravating factors under the Crimes (Sentencing Procedure) Act 1999 can operate cumulatively to significantly elevate the objective seriousness of an offence, even where individual factors might carry moderate weight in isolation.

  • A finding of special circumstances, which permits the non-parole period to be set at less than the statutory default proportion of the head sentence, was supported here by factors including mental health needs, the requirement for supervised reintegration, and the additional hardship of serving remand during the COVID-19 pandemic.

  • Parity principles required the court to calibrate sentences across co-offenders so that differences in outcome reflected genuine differences in culpability, role, and subjective circumstances, rather than arbitrary disparity.

  • Where a co-offender's role included detailed pre-offence planning and facilitating access to the victims' home, that conduct could found a home invasion charge even without direct physical participation in the violence.

  • Under the Crimes Act 1900, the fault element for reckless wounding is recklessness; the court accepted that seven wounds did not automatically equate to seven separate deliberate stabbings, though the number of wounds remained relevant to objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 59(2), 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Hoskins v R [2021] NSWCCA 169
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- R v Shepherd [2003] NSWCCA 351