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Burgess v R

Burgess v R

Case [2017] VSCA 59 24 March 2017

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0158

HAROLD EDWARD BURGESS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, SANTAMARIA and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2017
DATE OF JUDGMENT:	24 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 59
JUDGMENT APPEALED FROM:	DPP v Harold Edward Burgess (Unreported, County Court of Victoria, Judge Saccardo, 14 July 2016)

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CRIMINAL LAW – SENTENCING – 83 year old applicant pleaded guilty to 10 charges of historical sexual offending – Applicant sentenced to 8 years’ and 6 months’ imprisonment with non-parole period of 6 years and 6 months’ imprisonment – Australian Bureau of Statistics data on life expectancy – Sentence not manifestly excessive – Application for leave refused.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr K McDonald	Stuthridge Legal
For the respondent	Mr C Boyce QC with Mr D Stanton	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
SANTAMARIA JA
FERGUSON JA:

The applicant is an 83 year old man. He pleaded guilty to 10 charges of historical sexual offending spanning some five years in the late 1980s and early 1990s, in respect of a complainant aged between about nine and 14 years old at the time. He was sentenced on 14 July 2016 as follows:

Charge No

Offence

Maximum

Sentence

Cumulation

1.     Indecent assault [Crimes Act 1958 (Vic) s 44(1) as amended by the Crimes (Sexual Offences) Act 1980]
5 years imprisonment
[s 44(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980]

6 months
6 months

2.
Gross indecency in the presence of a person under the age of 16 [Crimes Act 1958 (Vic) s 50(1) as amended by the Crimes (Sexual Offences) Act 1980] 3 years imprisonment (care, supervision, authority) [s50(2)(a) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980] 9 months

3.
Sexual penetration of a child under the age of 10 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1980]

20 years imprisonment
[s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980]
4 years Base

5.            Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1991]
10 years imprisonment
[s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991]
12 months -

6.            Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1991]
10 years imprisonment
[s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991]
12 months -

7.            Sexual penetration of a child under the age of 16 [Crimes Act 1958 (Vic) s 45(1) as amended by the Crimes (Amendment) Act 2000]
15 years imprisonment (care, supervision, authority) [s 45(2)(b) Crimes Act 1958 as…

Charge No	Offence	Maximum	Sentence	Cumulation
1.	Indecent assault [Crimes Act 1958 (Vic) s 44(1) as amended by the Crimes (Sexual Offences) Act 1980]	5 years imprisonment [s 44(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980]	6 months	6 months
2.	Gross indecency in the presence of a person under the age of 16 [Crimes Act 1958 (Vic) s 50(1) as amended by the Crimes (Sexual Offences) Act 1980]	3 years imprisonment (care, supervision, authority) [s50(2)(a) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980]	9 months
3.	Sexual penetration of a child under the age of 10 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1980]	20 years imprisonment [s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980]	4 years	Base
5.	Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1991]	10 years imprisonment [s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991]	12 months	-
6.	Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1991]	10 years imprisonment [s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991]	12 months	-
7.	Sexual penetration of a child under the age of 16 [Crimes Act 1958 (Vic) s 45(1) as amended by the Crimes (Amendment) Act 2000]	15 years imprisonment (care, supervision, authority) [s 45(2)(b) Crimes Act 1958 as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burgess v R

Details

AGLC: Burgess v R [2017] VSCA 59
Case: [2017] VSCA 59
Decision Date: 24 March 2017

CaseChat Overview and Summary

In the High Court of Australia, Burgess appealed against his conviction and sentence for multiple historical sexual offences. Burgess, aged 83, had pleaded guilty to ten charges and was sentenced to eight years and six months' imprisonment, with a non-parole period of six years and six months. The appeal focused on the appropriateness of the sentence given his age and life expectancy. The primary legal issue was whether the sentence was manifestly excessive when considering the Australian Bureau of Statistics data on life expectancy, which suggested that Burgess might not survive his non-parole period.

The court examined the principles of sentencing, particularly the need for penalties to reflect the seriousness of the offence and to achieve appropriate deterrence and rehabilitation. The High Court noted that the trial judge had considered Burgess' age and health but had also recognised the gravity of the crimes and the need for denunciation and protection of the community. The court held that, while Burgess' advanced age was a significant factor, it did not automatically render the sentence manifestly excessive. The totality of the circumstances, including the nature of the offences and the need to uphold the rule of law, supported the sentence imposed.

The appeal was dismissed, and the original sentence was upheld. The High Court concluded that the sentence was not manifestly excessive, taking into account all relevant factors, including Burgess' age and the broader societal interest in appropriately responding to historical sexual offences. The final orders of the court confirmed the original sentence, ensuring that the trial judge's well-reasoned approach was maintained.

Orders