CDirector of Public Prosecutions v Darryl Burgess (sentence)

[2023] VCC 633

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02408

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

DARRYL BURGESS

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2023
DATE OF SENTENCE:	20 April 2023
CASE MAY BE CITED AS:	DPP v Burgess
MEDIUM NEUTRAL CITATION:	[2023] VCC 633

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW      

Catchwords: Sentence – Federal offending - use of a carriage service to groom a person believed to be under 16 years of age – sentence indication accepted – arraignment - unsuccessful application to change guilty plea – undercover police operative posing as teenager – persistent attempts to meet for sexual activity – limited remorse – limited insight into offending – offender aged 70 – family hardship – Verdins – general deterrence – immediate custodial sentence required  

Legislation Cited:        Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Criminal Procedure Act 2009 (Vic.); Sex Offenders Registration Act 2004 (Vic.).

Cases Cited:Western Australia v Collier [2007] WASCA 178; Rampley v R [2010] NSWCCA 293; Cooper v The Queen [2012] VSCA 32; Verdins (2007) 16 VR 269 Totaan [2022] NSWCCA 75; Rogerson (No 2) [2022] VSCA 154; R v Gajjar [2008] VSCA 268.

Sentence:                   15 months’ imprisonment; released after serving 8 months upon giving security by recognisance of $5,000 and conditions

S 6AAA – 2 years’ imprisonment with 11 months to serve immediately    

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B. Stevens	Commonwealth Director of Public Prosecutions
For the Accused	Mr R. Nathwani	Furstenberg Law

HIS HONOUR:

1Darryl Burgess, on 14 June 2022, you were arraigned in the County Court and pleaded guilty to one charge of using a carriage service to groom a person believed to be under 16 years of age for sexual activity, contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth).

2By your plea of guilty, you accept that, over a period of 6 weeks, you sent ‘Sienna Rose’, an undercover police operative posing as a 15 year old girl, a series of communications with the intention of making it easier to procure her to engage in sexual activity with you.

3This offence carries a maximum penalty of 15 years’ imprisonment.

Procedural History

4Before I summarise your offending, it is necessary to provide a brief overview of the procedural history of this case to explain the lengthy delay in its finalisation and especially the delay between your arraignment in June 2022 and the date of sentencing in April 2023.

5Your offending conduct occurred between July and August 2019. You were arrested on 17 August 2019. You engaged legal representatives, and at a committal mention in the Magistrates’ Court on 29 November 2019 you pleaded guilty. You were committed to the County Court of Victoria for a plea hearing on 25 June 2020.

6In June 2020, prior to your arraignment in the County Court, you withdrew the plea of guilty that you had entered in the Magistrates' Court.[1]

[1] As you had not pleaded guilty in this Court, leave was not required to withdraw your guilty plea.

7On 18 June 2020, an offer was made on your behalf to plead guilty to one charge of grooming contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth). This offer was rejected by the prosecution.

8Due to the delays stemming from the COVID-19 pandemic, and due to no fault of yours, on 2 July 2020 your case was adjourned to a 'holding date' of July 2022 for mention.

9On 7 April 2021, a further plea offer was advanced on your behalf to a single charge of grooming. This offer was also rejected by the prosecution.

10On Tuesday 14 June 2022, the matter proceeded before me on a Sentence Indication Hearing pursuant to s 207 of the Criminal Procedure Act 2009 (‘the CPA’). The court received detailed written submissions[2] from the parties which were supplemented by oral submissions. I indicated that, if you pleaded guilty to one charge of grooming, you would be convicted and sentenced to a term of imprisonment of 15 months with 8 months to be served immediately. 

[2] Prosecution Submissions on Sentence Indication dated 10 June 2022; Defence Submissions on Sentence Indication dated 10 June 2022/

11You accepted that indication and were arraigned and pleaded guilty to the grooming charge on 14 June 2022.

12Shortly afterwards, you engaged new legal representatives and applied for leave to change your plea to one of ‘not guilty’.

13When the change of plea application was heard by me on 20 September 2022, counsel for the CDPP indicated that the application to vacate the plea of guilty was opposed. Your previous solicitor, Ophelia Hollway, and barrister, Susanna Locke, both gave evidence and were cross-examined. The matter was adjourned part-heard.

14On 30 November 2022, you gave evidence under oath and were cross-examined on the contents of the affidavit you had affirmed on 1 October 2022. In addition, Ms Holloway and Ms Locke were recalled to give further evidence.

15On 14 December 2022, the matter came before the Court again and final oral submissions were made by both parties.

16On 16 December 2022, I delivered a ruling rejecting your change of plea application.[3] At the request of your counsel, that ruling was not published but will now be published along with these reasons for sentence.

[3] [2022] VCC 2275

17The matter then proceeded to a plea hearing before me on 4 April 2023.

Summary of Offending

18You are to be sentenced on the basis of the Agreed Summary of Facts for Sentence Indication Hearing dated 9 June 2022. The following summary of your offending is drawn from that Summary.

19In July 2019, you initiated a chat on the messaging application ‘Kik’ with an undercover police officer, who was posing as a 15 year old girl called ‘Sienna Rose’.

20In your first digital encounter, Sienna told you that she was 15 and a school student, and you stated that you were interested in having, ‘NSA fun’ – in other words, a no strings attached casual hook-up.

21The chat continued across multiple messaging platforms until 17 August 2019, and was at times highly sexualised. You asked Sienna whether she was a virgin, whether she masturbated, whether she liked older men, if she wanted to have various sexual acts performed on her, and whether she wanted you to teach her about sex.  On occasion, the language you used was quite explicit.  You made numerous requests to meet with Sienna and repeatedly asked her for pictures, including what you described as ‘naughty’ pictures.

22Importantly, you made multiple attempts to meet up with Sienna, including identifying train stations that you could meet at, asking her if she would let you take her to your house and enquiring about how much notice she would need to ‘skip school’.

23On 17 August 2019, you were arrested by the Australian Federal Police as you disembarked a flight at Melbourne Airport. Your luggage was searched by police and your mobile phone was seized and examined.

24Later that evening, you participated in a record of interview in which you admitted that you had been chatting to a ‘young lady’, but that you would never have followed through with any of the sex acts that you had discussed with her. You claimed that your conversations with Sienna were a mere ‘fantasy’. At no point did you tell police that Sienna was older than she claimed.

Commonwealth Sentencing

25Grooming is a federal offence. Section 16A(1) of the Crimes Act 1914 (Cth.) provides that:

'In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence, or make an order, that is of a severity appropriate in all the circumstances of the offence.'

26In making this determination, s 16A(2) requires the court to take into account a broad range of matters, including but not limited to:

(a)    The nature and circumstances of the offence;

(c)    If the offence forms part of a course of conduct;  

(f)The degree to which the person has shown contrition for the offence;

If the person has pleaded guilty to the charge;

(j)     Specific deterrence;

(ja)    General deterrence;

(k)     Adequate punishment;

(m)The character of the offender, including their mental and physical condition;

(n)The offender’s prospects of rehabilitation; and

(p)     The probable effect of the sentence on the offender’s family

Impact of the Sentence Indication Hearing

27Pursuant to s 209(1) of the Criminal Procedure Act 2009, because I gave a sentence indication in this matter under s 207, and because you pleaded guilty to the charge to which the sentencing indication related at the first available opportunity, when sentencing you for this offence I cannot impose a more severe sentence than the maximum total effective sentence that I indicated.

28As noted earlier, I indicated that, if you pleaded guilty to the offence of grooming before the court at the earliest opportunity, you would be convicted and sentenced to a term of imprisonment of 15 months. Pursuant to s 20(1)(b) of the Crimes Act, you would to be released after serving eight months, upon giving a security by recognisance of $5,000 and to be of good behaviour for two years.

29This indication is to be considered the ‘ceiling’ for the sentence that I will ultimately impose today.

S 16A(2)(a) - Nature and circumstances of the offence

30The offence of grooming represents an effort by the legislature to prohibit the use of modern technology in the abuse of children.[4] It is an intrinsically serious offence.

31The difference between the grooming offence and the more serious procuring offence which you originally faced was explained by the ACT Court of Appeal in R v Ralston[5]:

Unlike the offence under s 474.26 of the Criminal Code, which involves an intention “to procure” a child to engage in sexual activity and carries a maximum penalty of 15 years’ imprisonment, an offence of grooming is established by showing an intent to “make it easier to procure”. Section 474.27 was amended in 2010 to remove a requirement that the grooming communications be indecent. The associated Explanatory Memorandum stated (at 92):

The practice of grooming encompasses a wide range of activity designed to build a relationship of trust with the child for the purposes of later sexually exploiting the child. The content of communications between the offender and the child may not always be indecent – the grooming process is just as likely to involve platonic, “innocent” exchanges.

[4] R v Poynder [2007] NSWCCA 157 [95].

[5] [2020] ACTCA 47 at [14].

32In creating the grooming offence, the legislature has sought to ‘implement society’s abhorrence of the practice of inducing children to engage in inappropriate sexual behaviour.’[6] The purpose of the offence is ‘to deter potential offenders from using the internet for the purpose of inveigling children to engage in sexual activity’.[7] That process includes not only the direct sexual abuse of children but also, such as in this case, attempts to groom children to more readily accept sexual activity with adults.[8]

[6] R v Poynder [2007] NSWCCA 157 [96].

[7] Cooper v The Queen [2012] VSCA 32 at [17].

[8] Ibid.

33In circumstances such as these, general deterrence must be considered the primary sentencing consideration, given the ‘paramount public interest in protecting children from sexual abuse.’[9]

34It is necessary to assess the relative seriousness of your conduct. In doing so, I must make further reference to the sexually explicit nature of the ‘chat’.

35Your counsel, Mr Nathwani, submitted that your offending may be characterised as ‘at the lower end of seriousness for this offence’. In support of this submission, Mr Nathwani relies upon the following factors:

(a)   Your offending was not sophisticated;

(b)   The conversations occurred over a ‘relatively short period of six weeks’;

(c)   A small proportion of the messages that you sent were sexual in nature;

(d)   You did not hide your identity;

(e)   You did not encourage Sienna to engage in specific acts;

(f)    You were on a website for which you initially understood it was necessary to provide evidence that users were over 18; and

(g)   You were suffering from an adjustment disorder at the relevant time, which was linked to your offending behaviour.’[10]

[9] Western Australia v Collier [2007] WASCA 178 at [43].

[10] Plea submissions on behalf of Mr Darryl Burgess dated 2 April 2023 at [6].

27The prosecution submitted that the following features of your offending make it ‘an objectively serious example of the offence of grooming’:

a.That the offending occurred over 6 weeks and communications were invariably initiated by you;

b.That you drove the communications and were persistently asking ‘Sienna’ to meet with you and offered a range of options of how you could meet;

c.That the ‘premise’ of the communications was ‘no strings attached casual hook-up’. The sexual interest in Sienna developed very quickly with the accused stating:

i.12 July 2019: ‘want me to teach u…sex…(Do u want 2?)…yes…give u oral and how to give oral.’

ii.18 July 2019: ‘would u let me [kiss you]’.

iii.9 August 2019: ‘I want to meet u so I can teach you’

iv.17 August 2019: ‘when we meet I want to teach you how to suck and cum’

d.There was a significant age differential as far as you knew of 50 years and you lied about your age ‘to be a more plausible age to a younger person’; and

e.You were acutely aware of the wrongfulness of your actions as demonstrated by telling ‘Sienna’ not to wear her school uniform when you met.[11]

[11] Prosecution Submissions on Sentence Indication Hearing dated 10 June 2022 at [11].

28The content of the messages sent, their number and the period over which they are sent are important considerations in assessing the seriousness of a grooming case.

29Your constant requests that Sienna meet with you so that you could ‘teach’ her about sex are particularly concerning.  

30Your messages were more explicitly sexual during the first week than during the remaining weeks with the exception of the final message you sent on 17 August 2019. The pattern in your case follows that described in the case of Meadows v R[12] where the Victorian Court of Appeal observed that:

… the objective of procuring the victim’s participation in sexual activity is advanced by the use of explicit images and/or language. This is evidently done in order to introduce the victim to what the offender has in mind and to test whether the images or description provoke any adverse reaction.[13]

[12] [2017] VSCA 290.

[13] [2017] VSCA 290 at [45].

31This was your modus operandi. On 11 July 2019, which was the second day of your offending, you asked ‘Sienna’ if she was a virgin; told her you wanted to teach her ‘coz I think u fucking sexy;’ asked her if she had her ‘pussy licked by a girl or boy’; and asked her if she would like to have her ‘pussy fingered and licked by someone’. Having established that this explicit sexual chat did not ‘provoke any adverse reaction’, you set about arranging to meet ‘Siena’ for the purposes of engaging in sexual activity with her.

32In so doing, you were prepared, for your own gratification, to use this highly sexualised language in communicating with a child. As the court in Meadows explained, this is directly relevant to your moral culpability:

The harmful effect of exposing a child to very explicit language is self-evident. These considerations go the seriousness of the offence…irrespective of the fact that there was no actual victim.[14]

[14] [2017] VSCA 290 at [46]; see also Adamson v R [2015] VSCA 194 at [47] and [49] and Rampley v R [2010] NSWCCA 293 at [37].

33You sent a large number of messages to ‘Sienna’ on numerous days during the six week period of your offending. Your offending was part of a ‘course of conduct’ consisting of a series of criminal acts of the same or a similar character.[15] This is an aggravating feature of your offending. I do not accept your counsel’s submission that this was a ‘relatively short six week period’. The duration of your offending is a matter that contributes to its seriousness.

[15] Crimes Act 1914 (Cth), s 16A(2)(c).

34One of the most sexually explicit of the messages was the last one you sent on 17 August 2019 at 11.38 am:

U still want to meet up?? When we meet I want to teach you how to suck and cum. Forget last message it was sent to wrong person.

35That a grooming offence was committed against an undercover police officer posing as a child does not constitute a mitigating factor on sentence. As the NSW Court of Appeal has explained:

The offence is no less reprehensible when the offender is communicating with a fictitious person who they believe to be real than when communicating with a real person. The legislature provided for the offence to be committed in this manner in order to enhance the prospects of detection and accordingly deter offenders and minimise the use of the internet for the sexual corruption of children. … Regrettably the reality is that many actual victims may not report the internet exchanges with an offender. Their own immaturity may result in a failure to appreciate the consequences of the behaviour induced by an offender. They may not report out of fear of the consequences either from an offender or from parental discipline.[16]

[16] Rampley v The Queen [2010] NSWCCA 293 at [37]; see also Meadows v The Queen [2017] VSCA 290 at [12]; R v Cook [2018] TASCCA 20 at [44].

36Your counsel provided the court with a report prepared by Dr Ong, forensic psychiatrist. You denied to Dr Ong that all your ‘conversations with persons on the chat site were sexual in nature’.[17] Dr Ong reports that:

Mr Burgess stated that he began to view his online interactions with Sienna as being a game where he wanted to catch her out. He stated that he ended up “interrogating” the person on the other end by “asking trick questions”. He stated that his request for a voice call or encouragement to meet him at Caulfield or Chadstone were part of his “profiling” the other person in his quest to “uncover” Sienna’s identity; “I knew they weren’t who they said they were…I wanted to uncover this person…to reveal who they really are”.[18]

[17] Report of Dr Kevin Ong dated 21 March 2023 at 9.

[18] Report of Dr Kevin Ong dated 21 March 2023 at 9.

37Despite your plea of guilty, you expressly disavowed grooming ‘Sienna’. You told Dr Ong that ‘any language was “just terminology” and that any attraction [you] had was to “engage somebody as a distraction”’.

38What you said to Dr Ong is contrary to your plea of guilty. By pleading guilty you have accepted that:

a.    you communicated with ‘Sienna Rose’;

b.    being a person you believed to be under 16 years of age;

c.    with the intention of making it easier to procure Sienna Rose to engage in sexual activity with you.

39Further, I consider that the content of the chat as a whole, and the following exchange on 11 July 2019 in particular, makes your intentions quite clear:

DARRYL BURGESS

‘SIENNA’

U like older men

Do have a bf (boyfriend)

No I don’t

How old r u

48

Too old 4 u lol (laugh out loud)

Oh im 15 lolz

Y u on hear

Yes I know

Love teens

Do u? Lolz

Y r u here

U a virgin

Ok bored

Yea I am

Looking for men?

Bored n chattin

Want me to teach u

Teach me wat?

Sex

Ok Do u want 2

Yes

What bout ur wife

Give u oral and how to give oral

Doesn’t have to know

So u interested

Keep in touch I haver go soon

When u out house send yr number and I will call u

40There are other similar parts of the record of your conversations which I will not set out in these reasons.

41You also told Dr Ong that you have been “unfairly charged”; had “previously received poor legal advice”; and had been “shoehorned” into accepting a sentence indication”.[19] This represents a failure by you to accept responsibility for your offending and is inconsistent with the findings of this court in relation to your change of plea application.

[19] Report of Dr Kevin Ong dated 21 March 2023 at 9.

42These matters are relevant to your lack of contrition and the need for the sentence imposed by the court to address both specific deterrence and community protection, matters that are addressed later in these reasons.

Personal History

43I now turn to your personal history.

44You were born in 1952 in Pietermaritzburg, near Durban in South Africa. Although your childhood appears to have been a happy one, your developmental history was marked by the sudden loss of your brother from a brain tumour, as well as the discrimination you faced as a person of colour in apartheid era South Africa.

45After completing a Commerce Degree at Durban University, you worked a variety of small jobs before gaining employment at Unilever, a multinational corporation.

46After working for Unilever for ten years, you married your wife, Paulette – to whom you are still married - and the two of you migrated to Australia in 1986. There are two children of your marriage who both now reside in America and are successful professionals.

47Your family moved initially to Perth, and then, after twenty years, to Melbourne in furtherance of your business goals.

48In this respect, you have had a long and successful career in logistics and consulting roles in business applications, and have established training workshops in Papua New Guinea as a charitable endeavour. This charity initiative, the ‘Building Champions’ program, was established in 2007 and focuses upon assisting underprivileged individuals and families to obtain skills to enter the workforce.

Matters in Mitigation

49I now turn to discuss matters in mitigation.

s 16A(2)(g) - Plea of Guilty

50In applying s 16A(2)(g) of the Crimes Act, a court will have regard to the timing of the plea, the strength of the prosecution case and ‘whether the plea at a late stage was a recognition of the inevitable rather than evidence of contrition or a real willingness to facilitate the course of justice’.[20]

[20] SC [2008] NSWCCA 29 at [48].

51In the sentence indication I gave you in 2022 I accepted that your guilty plea was relatively early despite being made on the eve of your trial because you had twice offered to plead guilty to the lesser grooming offence, offers that had been rejected by the prosecution at the time.

52I consider that your guilty plea is a recognition by you of a strong prosecution case.

53Notwithstanding your application to change your guilty plea, there is still some utilitarian benefit in your plea of guilty. The Court of Appeal has repeatedly emphasised that a plea of guilty entered in the context of the ongoing disruptions caused by the COVID-19 pandemic is worthy of a pronounced amelioration of sentence.[21] In the unusual circumstances of your case, this benefit to the system of justice is not as pronounced as it otherwise would be because of the time and expense associated with dealing with your change of plea application. I have assessed the utilitarian value of your guilty plea in light of the above and mitigated your sentence accordingly.

[21] Worboyes v The Queen [2021] VSCA 169 at [39].

Section 16A(2)(f) – the degree of contrition

54In the case of Barbaro, the Court of Appeal explained the relevance of an offender’s remorse to the sentencing task:

If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence.[22]

[22] [2012] VSCA 288 at [39].

55In your letter to the court dated 15 March 2023, you state that you are ‘extremely remorseful of my behaviour’.

56Dr Ong reports that ‘Mr Burgess expressed remorse about the impact his actions have had on his wife and family’.[23]  

[23] Report of Dr Kevin Ong dated 21 March 2023, 9.

57Dr Ong also considers ‘there is evidence of Mr Burgess minimising the offending’. He expands on this by reference to Mr Burgess’ ‘cognitive distortions re-framing offending as a distraction or “game” to uncover the true identity of “Sienna” whom he insists he knew was an adult all along’.[24]

[24] Report of Dr Kevin Ong dated 21 March 2023, 11.

58While I accept that you have some remorse for your conduct, I consider that a significant part of that is ‘regret for being caught and the punishment that will follow’. It is not ‘real remorse to society in general for your involvement in the criminal activity’.[25]

[25] Barbaro [2012] VSCA 288 at [31].

59I have also taken into account the evidence you gave in support of your application to change your plea that you do not consider yourself to be guilty of this offence.[26] I have given minimal weight to this consideration.

[26]Affidavit of Darryl Burgess affirmed 22 November 2022 at [1]. See further [2022] VCC 2275 at 123.

Delay

60The passage of your case through the justice system has been significantly frustrated by the pandemic. I accept that this has caused you significant anxiety and hardship, and I have moderated your sentence to reflect this.

61In doing so, I accept that the delays caused between 2019 and mid-2022 were not caused by you. However, I have been mindful that your attempt to change your plea has been the substantial cause of the delays after the date of the Sentence Indication Hearing. I accept the Prosecution submission that it would be contrary to the public interest to mitigate your sentence further due to the additional delays to this matter subsequent to that date.

S 16A(2)(m) – personal circumstances

62Section 16A(2)(m) requires the court to have regard to your ‘character, antecedents, age, means and physical or mental condition’.

63The court received letters of support from both of your adult children and from your wife Paulette. All three speak of your devotion as a husband and father and describe your offending conduct as both a source of shame to you and out of character. Your family members seek clemency on your behalf. I have taken these character references into account as part of my assessment of your character.

64I have taken into account that while ‘prior good character will be given limited weight when sentencing for child exploitation offences,[27] past good character and service cannot be ignored.[28] You  receive credit for being a man with no prior convictions and no subsequent offending.

[27] R v Porte [2015] NSWCCA 174, [126]

[28] R v Hogan [2015] SASCFC 102, [72]

65You are 70 years old. The age of an offender is relevant to sentencing because any period of imprisonment will represent a larger proportion of their life expectancy and they generally find prison more burdensome than younger offenders.[29] These concerns are exacerbated in your case as this will be your first time in custody.

[29] R v DD (No 2) [2008] VSCA 15 at [19].

Mental Health – are the Verdins principle enlivened?

66Your counsel submitted that limbs 1, 3 & 4 of the so-called Verdins principles are enlivened and the court should ‘modestly’ mitigate your sentence on account of your reduced moral culpability.[30]

[30] Plea submissions on behalf of Mr Darryl Burgess dated 2 April 2023 at [42].

67It is well established in law that an offender’s culpability may be diminished due to the effect of a mental disorder from which they suffer. In Verdins v The Queen,[31] the Court of Appeal explained that impaired mental functioning ‘may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility’.[32]

[31] [2007] VSCA 62

[32] Ibid, [20] quoting R v Tsiaras [1996] 1 VR 398

68In such cases, the condition will affect the punishment that is just in all the circumstances, and ‘denunciation is less likely to be a relevant sentencing objective’. Before the so called Verdins principles apply, the impairment of mental functioning must contribute to, but need not have caused, the offending behaviour. This means that it must be established that the offender’s disablement had the effect of ‘impairing [their] ability to exercise appropriate judgment or impairing [their] ability to make calm and rational choices, or to think clearly at the time of the offence’.[33]

[33] Romero v The Queen [2011] VSCA 25, [13]; see also DPP v O’Neill [2015] VSCA 325, [75].

69Where the principles in Verdins are enlivened, not only may the moral culpability of the offender be reduced so that ‘denunciation is less likely to be a relevant sentencing objective’,[34] but the mental health condition may have a bearing on the kind of sentence that is imposed.[35] -  Further, depending on the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender at the time of the offending, both specific and general deterrence may need to be moderated or even eliminated as sentencing considerations.[36]

[34] Verdins (2007) 16 VR 269, [32], limb 1

[35] Ibid, limb 2.

[36] Ibid, limbs 3 and 4.

70The Verdins principles are and should be regarded as ‘exceptional’.[37] It is for the offender to establish on the balance of probabilities the facts that enliven the Verdins principles. This will normally be done by calling expert evidence and there must be a ‘rigorous evaluation of the evidence’.[38]

[37] Charles v R [2011] VSCA 399,[162].

[38] DPP v O’Neill [2015] VSCA 325, [68].

71The only evidence relied upon by your counsel in support of these submissions is the report of Dr Ong, who reached the following conclusions about your mental health:

‘Mr Burgess’ history is not suggestive of him having a diagnosable major mental illness. He may have met criteria for diagnosis of an adjustment disorder (with depressed and anxious features) secondary to multiple psychosocial stressors in the lead up to the offending. At current assessment, despite the ongoing legal and financial stressors, Mr Burgess maintains a reasonable level of functioning and does not have a treatable mental illness.[39]

[39] Report of Dr Kevin Ong dated 21 March 2023, 12 (emphasis added).

72I do not accept that this is a diagnosis of mental impairment at the date of your offending that enlivens Verdins. Even if I was to accept that you were suffering from a mental impairment, I do not consider the evidence to establish the necessary link between that impairment and your offending to have contributed in the required sense to your offending behaviour. The highest the evidence rises in this regard is the opinion of Dr Ong that, ‘in the lead up to offending, Mr Burgess was experiencing lowered mood and anxiety secondary to numerous family losses, financial and work stressors’.[40]

[40] Report of Dr Kevin Ong dated 21 March 2023, 13.

73I reject your counsel’s submission that the application of the Verdins principles require any reduction in your sentence.

Prospects for Rehabilitation

74Section 16A(2AAA) of the Crimes Act requires the court, in determining the sentence to be passed,  to have regard to ‘the objective of rehabilitating [you] including by considering whether it is appropriate to impose ‘conditions about rehabilitation or treatment options’.

75Mr Nathwani submitted that you have ‘excellent prospects of rehabilitation’, citing your otherwise unblemished criminal record, the presence of your supportive family, the absence of a diagnosis of paedophilia, and the embarrassment and enduring impact that your offending has had upon your family.[41]

[41] Plea submissions on behalf of Mr Darryl Burgess dated 2 April 2023 at [45]

76Although Dr Ong opines that your offending ‘may suggest an attraction to females of late adolescence (ephebophilia)’,[42] his structured risk assessment indicates that your risk of sexual recidivism is low. He also observes that ‘there does not appear to be a history suggestive of a chronic pattern of sexual deviancy’.[43]

[42] Report of Dr Kevin Ong dated 21 March 2023, 11; emphasis in original.

[43] Report of Dr Kevin Ong dated 21 March 2023, 13.

77Although, as previously discussed, you have failed to take responsibility for your actions and consistently minimised your offending, Dr Ong states that ‘it is not uncommon for persons in the pre-sentencing phase to deny sexual attraction that would draw social opprobrium’.[44]

[44] Report of Dr Kevin Ong dated 21 March 2023, 13.

78I consider that your prospects of rehabilitation are dependent on your acceptance of the serious nature of your offending and participation in counselling through a sex offenders program.[45] Your counsel informed the court that you have ‘scheduled specific sex offender treatment which is due to commence in April 2023’.[46] I have made participation in such treatment a condition of the sentence I impose.

[45] Cf. Cooper v The Queen [2012] VSCA 32 at [13].

[46] Plea submissions on behalf of Mr Darryl Burgess dated 2 April 2023 at [25].

S 16A(2)(p) - Family hardship

79The court must have regard to the ‘probable effect that any sentence …would have on any of the [offender’s] family or dependants’. In contrast to the position at common law,[47] there is no requirement for ‘exceptional circumstances’ to be made out in the application of s 16A(2)(p).[48]

[47] Markovic [2010] VSCA 105.

[48] See Totaan [2022] NSWCCA 75 and Rogerson (No 2) [2022] VSCA 154 at [73].

80Your wife Paulette suffers from ill health in the form of Hypothyroidism. She has informed the court that she depends on you for help with her illness as she has no other support in Melbourne.[49] I note that your adult children live overseas. Mrs Burgess also informs the court that her mother, who lives in Perth, is very ill and if you are incarcerated this will place more pressure on her to support her mother.

[49] Letter from Paulette Burgess dated 20 March 2023 at p 2.

81I accept that more generally, having to serve a custodial sentence and the restrictions on your ability to travel that will result from the conditions I impose on you after your release, will affect both you and your family. While this may be described as the inevitable consequence of your offending, it is still a matter that I take into account in amelioration of your sentence.

Current Sentencing Practices

82Although Part 1B of the Crimes Act does not expressly require a court to take into account current sentencing practices, the ‘implicit’ requirement to do so is imposed on this court by the common law.[50]

[50] R v Pham [2015] HCA 39 at [23] by reference to s 5(2)(b) of the Sentencing Act 1991 (Vic.)

83Consistency of sentencing, so that like cases are treated alike and different cases are treated differently, is an important sentencing principle. ‘Consistency’ in this regard is ‘not synonymous with numerical equivalence’ but means ‘consistency in the application of relevant legal principles’.[51] Because sentencing is fact-based, and all cases are different, a sentence imposed in another case ‘gives rise to no binding precedent’.[52]

[51] R v Pham [2015] HCA 39 at [28].

[52] Wong v The Queen (2001) 207 CLR 584 at [57].

84This court, when sentencing an offender for a federal offence such as grooming, must have regard to ‘sentencing practices across the country’.[53] Comparable cases decided by the intermediate courts of appeal ‘provide the most useful guidance to a sentencing judge’.[54] I have already referred to a number of those cases in the earlier description of the objective seriousness of your offending. A number of other cases were identified in the submissions of the prosecutor and I have read and taken these into account.[55]

[53] R v Pham [2015] HCA 39 at [18].

[54] R v Pham [2015] HCA 39 at [50].

[55] The cases include Rampley v R [2010] NSWCCA 293; DPP v Kebriti [2019] VSCA 275; DPP (Cth) v Hiznikov [2008] VSCA 269; DPP (Cth) v Walls [2014] VSCA 323; R v Burdon [2005] QCA 147; Western Australia v Collier [2007] WASCA 250 and R v Gajjar [2008] VSCA 268.

85At the hearing of your plea, your counsel referred the court to the case of DPP v Griscti,[56] a decision of her Honour Judge Hassan of this court. Mr Nathwani submitted that this case was a less serious example of the grooming offence under s 474.27(1) of the Criminal Code than yours. The offender, who had engaged in on-line chat of a highly sexualised nature with a police officer who he believed was a 14 year old girl, was sentenced to a term of imprisonment of 18 months with 6 months to be served. Mr Nathwani submitted that the subject matter of the chat involved in Griscti was more explicit than is the case with your offending. He submitted that your sentence should be less than that imposed in that case.

[56] [2020] VCC 1389.

86While I accept that the chat in Gristci was more explicit than yours, the following are other distinguishing features concerning both the offending and the offender:

·Unlike you, the offender did not persistently try to meet up with the ‘girl’ with a view to having sex with her;

·In contrast to you, the offender was genuinely remorseful and accepted that his on-line activity was a sexual outlet;[57] and

·In contrast to the position that currently prevails, the court accepted that time in custody in 2020 at the height of the first lockdown would be particularly onerous due to the pandemic.[58]

[57] [2020] VCC 1389 at [28], [38], [40] and [57].

[58] [2020] VCC 1389 at [57].

87In any event, as explained earlier, sentences imposed by other Judges of this court are of limited assistance in relation to ascertaining current sentencing practices.

Sentencing Objectives

88The principal purposes to be achieved in the sentence I impose on you are general and specific deterrence, denunciation and community protection.

89Your counsel has submitted that there is little if any role for you to be specifically deterred given your unblemished record and what are said to be your excellent prospects for rehabilitation.

90Community protection, and in particular the protection of children from sexual exploitation by adults, is an important sentencing consideration in this case. In light of your limited insight into your offending, as demonstrated by your description to Dr Ong of your crime as ‘victimless’, as well as your lack of contrition, I consider that there is some risk of further offending by you if the opportunity presents.

91Your complete failure to accept the seriousness of your conduct and to acknowledge that you were communicating with ‘Sienna’ to groom a person you thought was a teenaged girl for sexual activity, means that there is a role for specific deterrence in your case.

92I have also crafted the sentence to promote your rehabilitation.

93I have concluded that the seriousness of your offending, the maximum penalty prescribed for the offence and the importance of general deterrence mean that the only appropriate sentence in your case is a sentence of imprisonment with time to be served. In reaching this conclusion I have had regard to s 17A of the Crimes Act which provides that a court may only impose a sentence of imprisonment if, having considered the alternatives, it is satisfied that no other sentence is appropriate.

Orders

94Turning now to the orders that I make.

95You are convicted and sentenced to 15 months’ imprisonment. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), you are to be released after serving 8 months of the term of imprisonment upon you giving security by recognisance of $5,000 to comply with the following conditions:

(a)   That you be of good behaviour for 2 years;

(b)   That you be under the supervision of the Deputy Commissioner Community Correctional Services and Sex Offender Management or her or his nominee for 12 months;

(c)   That you attend for assessment and, if assessed as suitable, treatment for sex offender programs to reduce re-offending as directed by the Deputy Commissioner Community Correctional Services and Sex Offender Management or her or his nominee;

(d)   That you report to the Moorrabin Community Corrections Centre by 4 pm within two clear working days of your release from prison;

(e)   That you report to and receive visits from a Community Corrections Officer or Officers;

(f)    That you notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change;

(g)   That you not leave Victoria except with the permission of an officer of the specified Community Corrections Centre; and

(h)   That you obey all lawful instructions and directions of Community Corrections Officers.

96Mr Burgess, do you understand those conditions? Do you agree to abide by them?

97You must understand that if you breach the recognisance release order that I make today you can be brought back to court and be dealt with for a breach of the order as well as being re-sentenced on the original offence.

98I will ask you to sign the order.

99There are two other matters.

100The first concerns the Sex Offenders Registration Act 2004 (Vic.). It is agreed that you must comply with the reporting obligations under the Act for a period of 8 years. You will be required within 7 days of your release from custody to report your personal details and begin annual reporting as required by the Act for a period of 8 years. I am required to hand you certain documentation which notifies you of those requirements. I will ask that you sign and acknowledge that you have received that.

101Finally, I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic.) that but for your plea of guilty, I would have sentenced you to 2 years’ imprisonment with 11 months to serve.