Director of Public Prosecutions v Burgess
[2016] VCC 1004
•14 July 2016
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable For Publication |
Case No. CR-15-00231
Indictment No. E11895915.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAROLD EDWARD BURGESS |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 30 June 2016 | |
DATE OF SENTENCE: | 14 July 2016 | |
CASE MAY BE CITED AS: | DPP v Burgess | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1004 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – gross indecency in the presence of a person under the age of 16; sexual penetration of a child under the age of 10 – sexual penetration of a person aged between 10 and 16 – Indecent act with a child under the age of 16 (4 charges) – sexual penetration of a child under the age of 16 (3 charges)
Legislation Cited: Sentencing Act 1991; Crimes Act 1958, s44(1), s45, s47(1); Sex Offenders Registration Act 2004
Sentence:Total effective sentence of 8 years and 6 months’ imprisonment with a non-parole period of 6 years and 6 months. Section 6AAA declaration: 10 years’ imprisonment with a non-parole period of seven-and-a-half years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | D. Cordy | Solicitor for the Office of Public Prosecutions |
| For the Accused | R. Kelly | MJA Legal Services |
HIS HONOUR:
1 Harold Edward Burgess, you have pleaded guilty to 10 counts of sexual offending in respect of which your victim was aged between 8 and14 when he was assaulted by you.
2 The charges to which you have pleaded guilty may be summarised as follows:
Count 1, indecent assault
3 The activity the subject of this offending involved you fondling the complainant’s penis under his pyjamas whilst he was spending the night at your home, and masturbating him.
Count 2, gross indecency with a person under the age of 16
4 The activity the subject of this offending involved you, together with the complainant, masturbating your own penises in each other’s company.
Count 3, sexual penetration of a child under the age of 10
5 The activity the subject of this offending involved you sucking the complainant’s penis in the course of the offending the subject of Count 2.
6 At the time of the commission of Counts 2 and 3, the complainant was under your supervision, care or authority and the activities involved in the counts occurred in the course of the one course of conduct.
Count 5, indecent act with a child under the age of 16
7 The activity the subject of this offending involved you masturbating the complainant’s penis while you both watched a pornographic video.
Count 6, indecent act with a child under the age of 16
8 The activity the subject of this offending involved you showing the complainant pornographic magazines and then playing strip pool together.
Count 7, sexual penetration of a child under 16
9 The activity the subject of this offending involved you partially penetrating the complainant’s anus with your penis immediately following the activity the subject of Count 6.
Count 8, indecent act with a child under 16
10 The activity the subject of this offending involved you taking the complainant into the bathroom, laying him on his back in the shower and urinating over the complainant immediately following the activity the subject of Count 7.
Count 9, indecent act with a child under 16
11 The activity the subject of this offending involved you taking the complainant into your bedroom after he had washed himself in the shower, immediately following the activity the subject of Count 8 where, whilst you were both naked, you took a photograph of the complainant.
Count 10, sexual penetration of a child under 16
12 The activity the subject of this offending involved you sucking the complainant’s erect penis immediately after the activity involved in Count 9.
Count 11, sexual penetration of a child under 16
13 The activity the subject of this offending occurred immediately after the activity the subject of Count 10 and involved you straddling the complainant, who was lying on his back, and lowering your anus onto the complainant’s penis, causing it to penetrate your anus such that the complainant ejaculated into your anus.
14 At the time of the activities the subject of Counts 6 to 11, the complainant was under your care, supervision or authority and the activities occurred in the course of the one course of conduct.
15 You committed these offences over the period between 1 January 1989 and 1 March 1993.
16 You are currently 82 years old, having been born on 20 August 1933 and during the period this offending were in your early to mid-fifties.
17 I have briefly summarised your offending the detail of which is set out in the Prosecution Opening which is exhibit A and in respect of which no issue is taken.
18 It is appropriate that I record that your victim was a young, sexually innocent male child who lived next door to you who was variously subjected to acts to which I have briefly summarised above.
19 Although you face 10 Counts, there is no issue that a number of uncharged acts as set out in the Prosecution Opening give context to the charges to which you have pleaded guilty.
20 In summarising these matters so briefly, it must not be forgotten that your victim has now endured the consequences of your crimes for some 25 years without you being called to account for that conduct.
21 There can be no doubt that those crimes changed the course of the life of your victim by robbing him of the innocence of his childhood.
22 The victim impact statement of your victim records the extent of the impact of your offending upon his life. He has to varying degrees experienced and continues to experience feelings of shame, distrust of others, heightened anxiety and difficulty in forming relationships. Your victim has had to endure the effect of your offending:
· As it dislocated his life through his childhood and adolescence;
· As it continues to dislocate his adult life, affecting all relationships, intimate and otherwise, and impacts adversely upon his personal relationships and the stability of his personal and working life.
23 Statements such as those made by your victim in this instance which describe the lifelong effect of offending of this type upon young, impressionable children are all too often seen in this Court and in that sense the long-term damaging effect of the behaviour you visited upon your victim at such young ages comes as no surprise.
24 In contrast, during the long years which have passed since your offending, whilst your victim has endured the feelings and symptoms described in his victim impact statement you, on the other hand, have moved on with your life.
25 You indicated your intention to plead guilty to these offences shortly before the commencement of your trial. Whilst that plea saved your victim from having to give evidence in the setting of a formal trial, it nevertheless exposed him to the necessity of preparing for the trial and the emotional turmoil associated with that procedure.
26 You come before the Court without any history of prior conviction.
27 Relevant to your prospects for rehabilitation however is the fact that you have relatively recent convictions in respect to two counts of indecent assault with a child under 16. You performed the acts the subject of these offences in August 2011 and December 2013.
28 Given your subsequent offending and the fictitious allegations you made in your record of interview dated 2 March 2014 as to the alleged consensual sexual activity which your victim in this instance allegedly initiated with you when he was 18, I am satisfied that it could not be said that you have over the intervening years been burdened with guilt associated with your offending or the effect of your offending upon your victim, or that you feel any real remorse for that offending.
29 Your personal history is as follows.
30 You were born on 20 August 1933. You had a normal upbringing. You completed your Intermediate Certificate and after working for a short period in a sports store, you commenced your employment with the State Electricity Commission where you were trained and qualified as an engineer. You were appointed as a district manager with the SEC and retained that position until you decided to leave the SEC to work with your brother in the building industry. You eventually returned to the SEC and continued in that employment until you retired at approximately sixty when the SEC was privatised.
31 You married in 1968. You have three adult children. You are estranged from your wife and family by reason of the subsequent offending which you have committed. You live alone. Your health is reasonable having regard to your age. Your cognitive function has been assessed by Dr Pamela Matthews, who opined that you present with a fluctuating cognitive state, characteristic with the onset of Alzheimer’s Disorder but she nevertheless commented that “with few exceptions” all aspects of the testing undertaken upon you revealed you to be functioning at the average range for your age. You continue to have the support of your sister-in-law and brother-in-law.
32 In sentencing you, I must impose a sentence which is just in all the circumstances. I must have regard to the seriousness of your offending, your culpability for the commission of the offences and the effect of your offending upon your victims. I am required to take into account the need to denounce your behaviour as being totally unacceptable in our community, the need to punish you for your offending and to fix a sentence which is just in all the circumstances and ensures that you are appropriately punished. I must at the same time where appropriate take into account the interest of the community in ensuring the rehabilitation of offenders and their integration into the community.
33 You have pleaded guilty to each of these charges on the eve of the date fixed for trial. Your plea has saved the expense associated a trial but more importantly it has spared your victim from giving evidence at a trail and before a Jury. Your plea is also associated with significant social utility given the fact that your trial would have likely occupied some weeks. For this reason your plea entitles you to some discount in the sentence which I would otherwise have imposed in this instance.
34 By reason of the nature of your subsequent offending and your age at the time of that offending, I am satisfied that you have little prospect of being rehabilitated.
35 Given your age and my satisfaction that I must impose a prison sentence upon you I am satisfied that sentencing considerations which might arise in some instances such as the need to –
· deter an offender from reoffending; or
· protect the community from further offending;
assume only modest relevance as sentencing issues in this case.
36 Notwithstanding your age I am satisfied that the issue of general deterrence remains an important sentencing issue given the nature of you offending. It is important that I make the statement that abhorrent activity of this type will against innocent children will not be tolerated.
37 Whilst making that statement, in fixing your sentence I do so taking into account the relevance of your age in my obligation to fix a sentence which is appropriate in all the circumstances.
38 In making that statement in fixing the appropriate term of imprisonment in this instance, I am guided by and adopt the statement by the Court of Appeal in R v RLP,[1] namely that:
[1][2009] VSCA 271
1.“The age and health of an offender are relevant to the exercise of the sentencing discretion.
2.Old age or ill health are not determinative of the quantum of sentence.
3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.”
39 The nature of your offending, which involved:
· Your taking advantage of innocent vulnerable young child who came to you seeking company;
· The self-gratification involved in the activities you undertook without thought for the consequences of those activities upon your young victim;
· The period of time during which your criminal behaviour endured; and
· The serious and long-term effect of your offending upon your victim;
are matters which I am satisfied require me to impose upon you a significant custodial sentence in punishment for these crimes.
40 In sentencing you I am satisfied that I should accord appropriate weight to the obligation which I have:
· to denounce the behaviour involved in your offending and to impose a punishment which is just in all the circumstances;
· to make a statement to the community that abhorrent criminal activity of this type which is visited upon young victims will never be tolerated and will receive appropriate punishment whenever it comes to light.
41 Given your age and the fact that you have no experience with the prison system, I am cognisant of the fact that the custodial sentence which must be imposed in this instance will be likely to expose you to significant hardship and I give these matters due weight in fixing your sentence.
42 The position of the Prosecution is that a disproportionate sentence should not be imposed in this instance and I accept that position.
43 There is no guidance available to me as to the sentencing practices at the time at which these offences were committed other than that indicated by the maximum penalties for the offences. In fixing your sentence I take into account however that the maximum penalties associated with these offences were, for the most part, either marginally less or identical at the time at which they were committed to those which apply at the present time.
44 Whilst my sentencing must be guided by sentencing principles at the relevant time, I consider that it is also appropriate for me to take into account and give due weight to the current abhorrence within the community of offending of this type given:
· The predatory nature of your activity; and
· The damage done to victims of such offending;
· The extent of the breach of trust involved in your offending in that you took advantage of the trust which no doubt arose in the minds of the parents of your victim who allowed their child to enter your house and remain with you unsupervised, no doubt by reason of the fact that you presented yourself as a responsible and caring member of the community.
45 Taking all these matters into account, I am satisfied that it is appropriate to impose the following sentences with respect to these crimes. Please stand:
46 In respect of Count 1, which carries a maximum period of imprisonment of 5 years, you are convicted and sentenced to a period of imprisonment of 6 months.
47 In respect of Count 2, which carries a maximum period of imprisonment of 3 years, you are convicted and sentenced to a period of imprisonment of 9 months.
48 In respect of Count 3, which carries a maximum period of imprisonment of 20 years, you are convicted and sentenced to a period of imprisonment of 4 years.
49 In respect of Count 5, which carries a maximum period of imprisonment of 10, years, you are convicted and sentenced to a period of imprisonment of 12 months.
50 In respect of Count 6, which carries a maximum period of imprisonment of 10 years, you are convicted and sentenced to a period of imprisonment of 12 months.
51 In respect of Count 7, which carries a maximum period of imprisonment of 15 years, you are convicted and sentenced to a period of imprisonment of 4 years.
52 In respect of Count 8, which carries a maximum period of imprisonment of 10 years, you are convicted and sentenced to a period of imprisonment of 12 months.
53 In respect of Count 9, which carries a maximum period of imprisonment of 10 years, you are convicted and sentenced to a period of imprisonment of 12 months.
54 In respect of Count 10, which carries a maximum period of imprisonment of 15 years, you are convicted and sentenced to a period of imprisonment of 4 years.
55 In respect of Count 11, which carries a maximum period of imprisonment of 15 years, you are convicted and sentenced to a period of imprisonment of 4 years.
56 Pursuant to the provisions of the Sentencing Act 1991 you are required to be sentenced as a Serious Sexual Offender within the meaning of that term as employed by the Act in respect of Counts 3 through to 11. It follows that unless I order to the contrary, each sentence imposed with respect to those Counts is to be served cumulatively.
57 Notwithstanding the provisions of the Sentencing Act, and the abhorrent nature of your offending, in keeping with my obligation to ensure that the sentence which I impose must be just and appropriate to the totality of your offending, I am satisfied that a sentence involving cumulation of the individual sentences I have imposed as required by the Sentencing Act in this instance would not accord with the principle of totality. Accordingly I will make the following orders with respect to cumulation.
58 Given that the sentence as to Count 3 is the maximum sentence in this instance I fix that sentence as the base sentence.
59 I am satisfied that it is appropriate to direct that:
· 2 years of the sentence imposed with respect to Count 10
· 1 year of the sentence imposed with respect to Count 7
· 1 year of the sentence imposed with respect to Count 11
· the sentence of 6 months imposed with respect to Count 1
are to be cumulative with respect to each other and with respect to the sentence imposed in relation to Count 3 and that all other sentences are to be served concurrently.
60 Accordingly I have imposed a total effective term of imprisonment of eight (8) years and six months.
61 I am satisfied that it is appropriate to impose an order fixing a minimum period of imprisonment in this instance of six (6) years and six (6) months before you are eligible for parole.
62 In fixing your minimum sentence:
(i)I have taken specific account of your age and state of your health which Counsel in the course of your plea informed me involved the presence of nothing unusual other that the conditions which would be expected to associated with a man of your age and about which I gave Counsel the opportunity to submit further medical evidence relevant to the term of imprisonment which should be imposed and none has been provided.[2]
[2]See the transcript of the discussion between myself and the prosecutor as to the report of Dr Slipecevic.
(ii) I have borne in mind all the matters to which I have referred in the course of my sentence, and in particular:
·the fact that you face a term of imprisonment for the first time in your life and that this will be likely to expose you to significant hardship;
·The serious nature of your offending and it’s duration;
·Your recent co-operation with the authorities and factors which are personal to you to which I have referred;
·The issues of general deterrence which arise in this instance.
63 But for your plea of guilty in this instance, I would have imposed a period of imprisonment of 10 years and 6 months in respect of which I would have fixed a minimum period of 8 years
64 I am satisfied that the offences in respect of which you have pleaded guilty and have been convicted are appropriately categorized as involving both class 1 and Class 2 offences within Schedule 2 of the Sex Offenders Registration Act 2004 and accordingly that you are to be recorded as a registrable offender pursuant to the provisions of Sex Offenders Registration Act for life under that Act.
65 You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must do so after your release from custody. Details in writing of your reporting conditions will be served upon you shortly. I will ask your legal representative to attend to an acknowledgement of that notice and have you sign it.
66 I will make the order sought for the provision of a forensic sample in this instance on the basis of the grounds set out in that order, namely the serious nature of your offending and that the order is in the public interest. The provision of such a sample involves a mouth scraping which is not invasive however if you fail to cooperate in the provision of a sample reasonable force may be applied in order to secure the taking of a blood sample.
67 I will declare that the period of 14 days pre-sentence detention be entered into the records of the Court as time served in pre-sentence detention in this instance.
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ADDENDUM
55HIS HONOUR: Well yes, I'll revise my reasons to make that alteration.
56MR CORDY: Yes. There's another matter of significance, Your Honour. Your Honour indicated that you had provided the defence with an opportunity to provide medical material. and that none was forthcoming. I don't know what has happened in relation to the defence providing it to Your Honour, but they did in fact provide medical material to the prosecution, which I had expected would've been forwarded to Your Honour as well and I should - I feel I have an obligation to provide that material to Your Honour now.
57HIS HONOUR: Yes.
58MR CORDY: The prosecution's submission nonetheless is that it would not affect the sentence that Your Honour has imposed, but ‑ ‑ ‑
59HIS HONOUR: Just bear with me while I read this. Can I say that having seen this material, I am satisfied that the matters raised in the plea which describe the presentation of Mr Burgess, with conditions which might be expected of someone of his age, is really confirmed by this material and that of course I should give it due weight, but it doesn't influence me to alter anything that I have said in my sentencing comments.
60MR CORDY: Yes. With respect, the submission of the prosecution is that that is the correct approach, Your Honour. As Your Honour has already indicated, in particular, that you've taken account of the fact that because of his age and health, that a sentence of imprisonment would be a harsh matter for the accused. But for the sake of completeness, Your Honour, perhaps that report should be tendered as an exhibit.
61HIS HONOUR: Yes, there's no doubt that that's appropriate. I'll mark it as the next prosecution exhibit.
62MR CORDY: Yes.
63#EXHIBIT 4 - Medical Material.
64MR CORDY: Yes. No other matters, Your Honour.
65HIS HONOUR: Thank you. We'll just mark this.
66MR CUTTING: Grateful to my friend for raising that. It appears, Your Honour, it may have - a note from my file, looks like it was E-filed on the 11th, but I can't comment much further than that.
67HIS HONOUR: I'm not being critical of anyone about this. Sometimes things fall through the cracks. I think it - I want to make it quite clear that had I seen the material, it wouldn't have altered the sentence that I've given, other than that I would've acknowledged that I'd seen it.
68MR CUTTING: Your Honour pleases.
69HIS HONOUR: Now we need to - you can take a seat Mr Burgess. We just need to attend to the signing of the relevant obligation to report.
70MR CORDY: There's just one further matter, Your Honour, while that's been done, that I feel I should raise. Your Honour declared 14 days as pre-sentence detention, it should be 13 days, not including today.
71HIS HONOUR: Yes. So the appropriate period is 13 days? Should it be referred to as 13 days not including today or 13 days?
72MR CORDY: Thirteen days, not including today, Your Honour.
73HIS HONOUR: Yes, all right. I'll make that declaration.
74MR CORDY: Yes, I'm being corrected by my learned instructor, Your Honour, he believes it's 14 not including today, given that he went in on the 30th. So I apologise for that.
75HIS HONOUR: That's all right. Mr Prosecutor, might I ask your instructor to prepare a summary of the prosecution opening which is appropriately anonymised ‑ ‑ ‑
76MR CORDY: Redacted, yes.
77HIS HONOUR: ‑ ‑ ‑ so that I can append it to my reasons.
78MR CORDY: Yes, I'll have him do that, Your Honour.
79HIS HONOUR: Yes. If it's providing Word version, it'll allow us to check it and make any alterations if necessary to it.
80MR CORDY: Yes, Mr Cameron's aware of that.
81HIS HONOUR: Is there anything else to attend to?
82MR CORDY: Just in relation to the appeal, Your Honour, I'm not sure whether the appellants are here yet. But I ask Your Honour for a few minutes so that I can speak with the complainant in this matter and his family.
83HIS HONOUR: I'll just direct that Mr Burgess be removed from the court.
84MR CUTTING: Your Honour, I'll just provide this to Mr Burgess.
85HIS HONOUR: Of course.
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