Director of Public Prosecutions v Burke

[2019] VCC 1454

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-18-02117

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN BURKE

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Shepparton
DATE OF HEARING:	30 August 2019
DATE OF SENTENCE:	5 September 2019
CASE MAY BE CITED AS:	DPP v Burke
MEDIUM NEUTRAL CITATION:	[2019] VCC 1454

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Pleas of guilty – sexual assault (2 charges) – theft
Legislation Cited:	Crimes Act 1958; Sex Offenders Registration Act 2004
Cases Cited:	Ibbs v The Queen [1987] HCA 46; Bugmy v The Queen [2013] 249 CLR 571; DPP vDalgliesh (a pseudonym) (2017) 91 ALJR 1063; Sayer v The Queen [2018] VSCA 177
Sentence:	Convicted and sentenced to a total effective sentence of 1 year and 3 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr R. Edney with Ms K. Ballard (For Plea) Ms C. Cussen (For Sentence)	Victorian Aboriginal Legal Service

HIS HONOUR:

1Mr Burke's plea in this Court to Indictment No.J10269707.2 was heard on the 30th day of August.  On that day, Mr Cordy appeared on behalf of the Director.  Mr Edney and Ms Ballard appeared on behalf of Mr Burke, and
Ms Cussen appears today.

2There were three charges in the indictment. Two of those concerned breaches of s.40 of the Crimes Act.  The victim in the matter, Ms Brecht,[1] was subject to those two charges of sexual assault by way of sexual touching and, the facts of those crimes were accepted by Mr Edney as set out in the prosecution opening for plea.

[1] A pseudonym.

3The first charge concerned the touching of the victim's breast.  That followed an attempt by him to kiss the complainant.  He grabbed at her, thereby exposing her breast and grabbed at her breast for a short time. 

4The second charge involved him placing his hand down the leggings that the victim was then wearing, touching her vagina and rubbing the top of it for a short time. Through her resistance, she stopped him getting his fingers any further into her vagina. It is important to remember that the touching's involved in this offence and the definition of same, is contained in s.35B of the Crimes Act.

5The seriousness of both of those charges is demonstrated by the fact that the Parliament has prescribed a maximum sentence for such offence of
10 years' gaol. 

6It is, of course, necessary to assess in sentencing, the heinousness of these two crimes. In this instance one does that by placing it on a scale of heinousness, in which the experience in regard to all crimes pursuant to this section, is put in balance. One has to assess purely, at this stage I am talking about, the objective criminality on the scale of heinousness, as referred to by the High Court in Ibbs v R [1987] HCA 46. It was accepted by the prosecutor that both these crimes are lower on the scale.

7Insofar as the theft charge was concerned, the complainant was Michelle Morris.[2]  The first two charges occurred on the 27th day of December 2017 at Ms Morris’ home and Charge 3, being the theft of a series of items set out in the indictment, of which only the kayak and paddle have been returned, occurred on the 7th day of January 2018, when he left Ms Morris’ home.  As set out in [12] of the prosecution opening, the value of the items, as detailed therein, without any formal proof, totals approximately $2,000.  One only makes the remark at the value put on a cricket bag and gear, although I suppose one has to consider the replacement costs in these matters.

[2] A pseudonym

8The particular circumstances, as I have said, were precisely detailed by Mr Cordy in the summary and they come about from the fact that Ms Morris allowed Mr Burke, who as we understand from materials put before the Court, was itinerant, to a stay at her home, after she had met him at a friend's home.  Hence when the complainant, in regard to Charges 1 and 2, came to visit Ms Morris’ daughter, she came upon Mr Burke and Mr Burke invited her in. Thereafter this criminality occurred. The complainant at the time was 56, which is obviously 20 years older than Mr Burke was at the time.  The circumstances of the theft do not need to be expanded upon.

9The prior offences that Mr Burke has are, of course, concerning to this Court.  They involve three rape charges, two of which he was convicted of in 2012 in Queensland, significantly, pursuant to that sentence, at the time of this sexual offending he was still serving a suspended sentence. No doubt, having committed these breaches, he will be required to go back and serve the balance.  Of course the fact of that suspended sentence does not, in any way, impact on the objective criminality of those two offences, but it aggravates the culpability of Mr Burke.  He also has a considerable number of dishonesty priors, which are consistent with the lifestyle he has led. 

10Insofar as the victim in regard to the first two charges, I note that she is present, she is listening to this by way of remote witness facility.

11Her victim impact statement was read to the Court by Mr Cordy, as she had requested.  Having re-read that material, it is clear that there is nothing exaggerated about it.  One understands from the circumstances, her shock and horror at being attacked in such a manner. The factors that she has expressed as a consequence thereof, being the lack of trust, issues with working with people and being able to work and social issues are not, in any way, exaggerated or inappropriate.

12In a submission to the Court, Mr Cordy noted that the record of interview involved Mr Burke disputing totally these allegations and suggesting that such sexuality was consensual. Fortunately by February of this year, he had accepted his criminality and had made an appropriate offer, which was accepted. Hence the filed over plea. He is entitled to be treated as having provided a plea at the earliest time to the filed over indictment.

13Despite the operation of the serious sexual offender provisions, Mr Cordy submitted that given the closeness in time and their type, that despite the Parliament's view as to the need for total cumulation, correctly, it seemed to me, Mr Cordy spoke of the need for some concurrency in all the circumstances, on the basis of totality. 

14Also there was an application made for me to exercise my discretion, insofar as the sexual reporting legislation is concerned and I will come to that in due course. 

15In regard to the plea of Mr Edney, he tendered as Exhibit 1, the written plea of 30 August 2019, and spoke to that in submission.  Essentially his plea was that the 581 days which Mr Burke had served, in all the circumstances, was appropriate, considering the particular crimes and the heinousness of those.  He relied in particular upon the circumstances of Mr Burke's background, which he set out, at [5] - [26] of his written submission. 

16Mr Burke, unfortunately, is one of many men who come before the Court who have been subject to a violent upbringing.  In this case, by a violent step-father, where, as a young boy, he was placed in hospital as a result of such violence.  As a result of early neglect, he left school early. He became a ward of the State at a very early age and suffered abuse therein and unfortunately, with that background, was soon in trouble with the law. 

17Indeed the first offence, a rape, occurred when he was 16 years of age in Tasmania.  The circumstances were put to me from Mr Edney and that they involved essentially vigilante-type activity upon a person who was supposed to be a child abuser.  The 2012 offending was a different matter apparently.  It has some similarity, although much more serious to this matter, but related to some woman that he had had an association with that was then pursued.

18Essentially, apart from those serious matters, his offences, as I have said, made up of honesty and street-type offences.  The rape in Cairns was, of course, 2012 and he has another serious offence which occurred also when he was 18, which was a matter of armed robbery, for which he received two years.

19The major submission from Mr Edney, as I said, was, given the totality of these circumstances, the plea of guilty, the fact that such warrants an appropriate discount, not only for its utilitarian benefit, but the fact that the complainant, in particular, in this case, was saved from being involved in a contested hearing and the principles set out in Bugmy [2013] 249 CLR 571, should be taken into account, given the lifestyle led by Mr Burke. I think that is appropriate.

20In this regard, a Mr Tubb was called.  A letter from Mr Tubb was tendered as Exhibit 2.  He is a person who conducts pastoral support in the Lutheran refuge in Renmark.  During the time that Mr Burke was held on remand, he came under the influence of Mr Tubb and his wife.  Mr Tubb gave moving evidence, in the sense of his appreciation of the life that Mr Burke has led, the assistance he has provided to try to give Mr Burke some reason in life, in particular by way of religion and the adoption of the principles that Mr Tubb lives to. 

21Mr Tubb said that, while initially he observed a person expressing denial and bitterness, in particular because of the life that he had led, that he felt that
Mr Burke was now accepting of his criminality, accepting of his life and has a determination not to commit any further crime.  Mr Tubb, it seemed to me from his experience, was quite realistic.  He has regular contact with the local police, the refuge involves him in realities of life. As he expressed, and has told Mr Burke, the only way Mr Burke is going to change his lifestyle, is not committing any more crime. Mr Tubb expressed to the Court that he and his wife and the Lutheran refuge were more than prepared to help Mr Burke in this matter, provided he was prepared to assist by not committing further crime. 

22As I said at the time, it is refreshing for a Court to hear from persons who assist people in Mr Bourke's situation, and have belief in the goodness of humanity, despite what people may have done.  However, as I said at the time, it all depends, that is, the reality of Mr Tubb’s optimism for Mr Burke, on how he conducts his life, which Mr Burke well understands. 

23In regard to Mr Edney's original submission, he relied on the plea of guilty and the professional submission of the Director as to the as to the objective criminality.  Mr Cordy noted the seriousness of such offending and its being aggravated by being committed while on a suspended sentence.

24As Mr Cordy said, the Court must take into account, therefore, matters of specific deterrence, especially given the background that I have detailed, insofar as Mr Burke is concerned, the issue of denunciation of these attacks upon the victim and the need for appropriate punishment.  Of course, as it was made clear by the High Court recently in Dalgliesh (a pseudonym) (2017) 91 ALJR 1063, and stressed by Mr Edney, I come as a matter of law to sentence Mr Burke for the objective criminality and that relates to these matters. Those principles are set out by the High Court in Dalgleish at [1063] to [1075].

25In the circumstances therefore, it was conceded by the Director that the period served, given totality and an analysis of all the circumstances of this criminality, was sufficient in all the circumstances.  That is, a period of 19 months' gaol. 

26Insofar as how that was achieved, there was some debate as to whether I should impose a period of parole or how the matter is to be handled.  Mr Edney, in plea, submitted that given the submission of the prosecution that I should in fact, insofar as these crimes are concerned, order, given the service by
Mr Burke of 19 months, his immediate release, and allow him, by such order, to proceed to Renmark to be assisted in the manner that we have heard.  In the circumstances, that proposition was also supported by Mr Cordy.

27If you would stand up please, Mr Burke.

28In this indictment in regard to the first two charges, you come to be sentenced as a serious sexual offender. As I said, that means that the primary principle to be considered is the protection of the community. However there was no submission that I should past a disproportionate sentence.

29The Parliament also requires, where you are sentenced for sexual assault, cumulation to be effected and for a recording in the records that you have been so sentenced.

30On the first charge in the indictment, you are therefore sentenced to six months imprisonment.

31On the second charge, you are sentenced to nine months imprisonment. It will be recorded on both those charges that you have been sentenced as a serious sexual offender.

32On the third charge of theft, which also carries a maximum sentence of 10 years, you will be sentenced to a period of six months imprisonment.  That sentence, in the circumstances, is appropriate because you have a considerable number of priors for theft. 

33Using the sentence on Charge 2 as the base sentence, I order that six months, be cumulated, two months of the sentence in regard to Charge 1 and insofar as Charge 3 is concerned, I will cumulate four months, making in total therefore an aggregate sentence of 15 months. I accept that the submission of Mr Cordy and of Mr Edney, that in the circumstances, given totality, despite the wishes of the Parliament, it is only appropriate to so cumulate.

34I declare that 15 months of the 19 months that you have served, be deemed as pre-sentence detention of this sentence. 

35Now, were we going to put days in that matter?  What was that? 
Five eighty-seven is total.  No, no, but 15 months, is that the 588?  All right. 

36So the 587 days which amounts to 15 months we had declared as pre-sentence detention on this sentence and recorded as such.  You will therefore have another four months of dead time, should you need to use it in the future. 

37The ancillary order I have made is the order under s.464ZF.  That is a forensic order, Mr Burke, given the matters that you have been convicted of, it is the view of the Court that it is necessary for you to provide that material.  You will be requested by the police to give that material by way of forensic sample from your mouth.  The alternative if you do not give that, is for the police to come back to court to get an order from me, so can I ask you to do that voluntarily. 

38Pursuant to s.6AAA, I declare, as best I can in the totality of these circumstances in order to comply with the wishes of Parliament, that had you not pleaded guilty, that the total aggregate sentence that I would have given you would be a period of 22 months imprisonment. 

39An issue arose as to the reporting obligations under the Sex Offenders Registration Act, there is no automatic obligation under the Act in regard to these two offences, which are Class 4 offences.  It has been submitted, however, that the Court should exercise its discretion under s.11(1), to order your compliance with the reporting obligations under the Act. 
Sub-section 3 requires this discretion to be only exercised by the Court if it is satisfied beyond reasonable doubt that you present a risk to the sexual safety of the community.  In that regard, Mr Cordy referred me to the case of Sayer v The Queen, reported [2018] VSCA 177.

40Mr Edney opposed such order.  He questioned if I could be satisfied to such degree beyond reasonable doubt in the circumstances of this case.  He pointed out what he said was a 10 year gap from the Queensland conviction, which I think is more correctly a five year gap, and a 18 year gap from the conviction you had as a child and the circumstances of that conviction.  He also raised the issue of the length of any reporting time, as put by the prosecutor, however, as to the question of risk, it does not seem to me that the length of the reporting time is a matter.

41As I indicated to Mr Edney in the plea, you have two priors for rape.  Well in fact three if you add the two offences in Queensland and the one in Tasmania. Irrespective of what the circumstances of those rapes were, an analysis of the circumstances of this criminality, which involved a sexual attack upon a woman 20 years older than you, when the opportunity presented itself out of the blue, and the persistence of the attack, given the resistance of the victim, together with the fact that these offences were committed while you are in fact serving a suspended sentence for rape, when taken in totality, satisfy me beyond reasonable doubt that you do present a risk to the community of further sexual offending. 

42The process, as set out in the case given to me by Mr Cordy, of course requires a two stage process.  Having determined that you do present such a risk, the question is whether, in all the circumstances, such an order should be made.  The matters spoken about in Sayer refer to the impact upon your freedom, the onerous obligations under the reporting schemes and the restrictions perhaps on your own addresses and ability to move.

43It is also clear that the fundamental reason for such Act relates to protection of children, however, the purposes of the Act, pursuant to s.1(1)(a) apply directly to you and that is, where there are circumstances relevant to general sexual risks to the community as a whole.  After taking into account those matters, as I am required to, I find that this order should be made. I do intend to exercise my discretion to order that you are and do comply with the reporting obligations under the Act.

44Mr Cordy, I don't actually set those, because this is a matter set by Parliament and I understand from the material handed to me today, that there is now no dispute that those reporting obligations, given the background and these two matters, of which he has been convicted, mean that Mr Burke's required to report for life.

45MR CORDY:  That is right, Your Honour.

46HIS HONOUR:  Yes.  Well, I do not set that figure, but it is necessary for me to tell you, having ordered that you comply with the reporting obligations under the Act, it will be necessary for you, pursuant to that Act, to comply with those for life.  All right?  That is an obligation set by Parliament.

47Mr Cordy, are there any other matters that I have to attend to?

48MR CORDY:  Just one, Your Honour.  In setting the pre-sentence detention, Your Honour's intention is clearly to order that 15 months be declared as pre-sentence detention.  In terms of days, that's 450 days, Your Honour.  The 587
was ‑ ‑ ‑

49HIS HONOUR:  That is what I thought.  Four-fifty, which takes care of the totality of the sentence in this matter.

50MR CORDY:  Yes, Your Honour.

51HIS HONOUR:  Yes.  Yes, Ms Cussen, if you could arrange for your client to sign that acknowledgement ‑ ‑ ‑

52MS CUSSEN:  Yes, Your Honour.

53HIS HONOUR:  ‑ ‑ ‑ insofar as is that the s.464ZF?  Take a seat, Mr Burke. 
Mr Prosecutor, I understand Mr Burke's still in custody and he will be taken back ‑ ‑ ‑

54MR CORDY:  I am assuming that he'll be released from where he was in custody and I'm not sure whether the police release a person now.

55HIS HONOUR:  Anyway, they will work that out.

56MR CORDY:  They will work that out.

57HIS HONOUR:  Just in case there are any other matters.

58MR CORDY:  Yes.  There is just one issue, Your Honour.  I am not sure, I might have missed it, but Your Honour, pursuant to the provisions of s.464ZF, having made the order for a forensic sample, Your Honour's required to warn Mr Burke that police or authorities ‑ ‑ ‑

59HIS HONOUR:  I did.  I told him that. 

60MR CORDY:  Thank you.  I missed that. 

61HIS HONOUR:  Thank you.

62MR CORDY:  I apologise.

63HIS HONOUR:  Mr Burke, just so you fully understand.  The totality of the sentence is 15 months that I have given you for these matters.  You have already served 19 months by way of pre-sentence detention, so you've got four months up your sleeve, so to speak.  I hope you don't need it for anything else. 

64The declaration under s.6AAA of 22 months, simply means, and what Parliament ask me to do, is to make sure you understand that by pleading guilty, you have saved yourself seven months' gaol.  All right?  Yes.

65Any reason why Mr Burke cannot be taken away? 

66COUNSEL:  No, Your Honour. 

67HIS HONOUR:  All right.  Yes, Mr Burke, thank you.

68OFFENDER:  Thank you, Your Honour. 

69MS CUSSEN:  As the court pleases. 

70HIS HONOUR:  Thank you, Ms Cussen.

71MS CUSSEN:  Thank you, Your Honour. 

72HIS HONOUR:  Will I stand down?

73MR CORDY:  Yes, if Your Honour wouldn't mind standing down for a few moments, so ‑ ‑ ‑

74HIS HONOUR:  All right.

75MR CORDY:  Yes, thank you.

‑ ‑ ‑