Director of Public Prosecutions v Burke (a pseudonym)
[2014] VCC 1448
•22 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JERRY BURKE (A pseudonym) |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 7 – 15 July 2014; Plea: 12 August 2014 | |
DATE OF SENTENCE: | 22 August 2014 | |
CASE MAY BE CITED AS: | DPP v Burke (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1448 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Churchill | OPP |
| For the Accused | Mr R. Backwell | Valos Black Lawyers |
HER HONOUR:
1 Jerry Burke,[1] you have been convicted of 11 charges of sexual penetration of your niece, and one of indecent act with her when she was a child under 16. At your trial you were presented on a further three charges, two of sexual penetration and one of indecent act with her. The jury was unable to agree on verdicts in respect of those three charges.
[1] Pseudonym used.
2 This was the second time that you had faced trial on these charges. On the first occasion you were convicted of five charges of sexual penetration and the jury disagreed on a further ten charges of sexual penetration and indecent act.
3 A further four charges of sexual penetration and one of indecent act were, at the first trial, the subject of directed verdicts of not guilty as a result of the complainant failing to give evidence of the acts the subject of those charges. An appeal against your convictions was successful and you were retried on all outstanding charges; the five in respect of which verdicts of guilty had been recorded, then quashed, and the ten where the original jury had failed to agree.[2]
[2]Jerry Burke (a pseudonym) v R [2013] VSCA 351.
4 On the first trial the guilty verdicts were all majority verdicts. On the retrial before me the jury brought in unanimous verdicts on seven charges of sexual penetration and majority verdicts on the remaining four sexual penetration charges and the indecent act charge. You have been found guilty again, this time unanimously, of four of the charges that the first jury, by majority, found proven. On this occasion the jury was unable to agree on a verdict in respect of the fifth charge that the original jury had, by majority, found proven. On this trial you have been found guilty of a further eight charges which were the subject of disagreement at the first trial.
5 On your re-trial the pre-recorded evidence of the complainant and all witnesses, other than the informant, given at the first trial, was played to the jury, so obviating the need to recall any of them. There were some edits to the recordings to remove references to the charges which were the subject of the directed not guilty verdicts. Similarly, the record of interview was edited to remove reference to those charges.
6 At the first trial you did not give evidence and the failure to give an Azzopardi direction, coupled with error identified in the first judge's response to a jury question about the weight to give your responses in your record of interview, formed part of the reasons a retrial was directed. At this trial you did give sworn evidence, denying, as you had in a recorded conversation with the complainant - a pretext call - and in the record of interview, any sexual misconduct with the complainant. By its guilty verdicts in this trial the jury clearly rejected your denials in the pretext call and the record of interview.
7 The circumstances of the charges of which you have been found guilty can be briefly stated. In late 1995 your brother, his wife and children, including the complainant, then aged 11, came to Melbourne from their country of origin. You had been in Australia for some years. You got your brother a job with your employer. They lived with you, your then wife and your children for some months before moving into a house of their own. The families were close and continued to spend a lot of time together, even after moving into their own home. Over a period of three years you repeatedly sexually abused the complainant. The abuse started within months of the arrival of the complainant and her family whilst they were still living in your home, and continued until she was 14. You were aged between 32 and 35.
8 Charge 1 is a charge of oral penetration, making the complainant fellate you, occurring when the complainant was playing alone in the bedroom that she shared with your daughter. This was preceded by other sexual acts. You exposed yourself to her, made her touch and kiss your penis and masturbated yourself. You told her it was okay and that she was allowed to do what you told her to do. You stopped only when you became aware your wife was moving around nearby and told the complainant not to tell anyone, that it was "our secret."
9 Charge 2 is an act of digital penetration occurring some weeks after the first assault. You again took advantage of the complainant in her bedroom. On this occasion you walked in on her when she was changing her clothes and was naked. You pulled her towards you, touched her vagina and continued to do so after she had pulled away from you, and then you digitally penetrated her. It hurt. This time you were not interrupted, you stopped when you wanted to and left the room.
10 Charges 3 and 4 are two discrete acts of sexual penetration, first licking the complainant's vagina, then making her fellate you until you ejaculated. Again this occurred in the complainant's bedroom. You told her she made you feel really good and she was a “good little girl”. Again you told her it was ok, not to tell anyone and that it was "our little secret."
11 The jury was unable to agree on verdicts on Charges 5 and 6, both relating to an episode the complainant said occurred in your bedroom when she had been sent to call you to breakfast.
12 Charges 7 and 8 are two discrete acts of sexual penetration which occurred in the rear of a truck parked in the backyard of your house. You were in the habit of parking a work truck in the yard from time to time. You told the complainant to go into the truck with you. You then made the complainant fellate you before penetrating her vagina with your penis. She told you it hurt and you told her it was okay, it would get better. You kept going for as long as suited you. When you had finished you got off her and there was blood on the outside of her vagina and on her inner thigh. You told her to go inside and have a shower. She felt a stinging pain on urination and spotted blood for some days after.
13 Charge 9 is a further charge of penile vaginal penetration. This occurred in your bedroom, where you had told the complainant to accompany you, and it continued until you ejaculated inside her. When you had finished you told her to have a shower.
14 Charge 10 occurred in the garage at the rear of the house. You directed the complainant to go in there with you after the two of you had walked to the nearby shops. Again you directed her to fellate you and held and moved her head so that she could not pull away. You continued until you ejaculated in her mouth. Again, as you had on most if not all of the other occasions, you told her that she was your “good little girl”, that she was not to tell anyone and that it was "our little secret."
15 Charge 11 is another charge of oral penetration, forcing the complainant to fellate you until you ejaculated in her mouth. This occurred in the bathroom when you walked in on her as she was emerging from the shower. Although Charge 11 is a specific occasion described by the complainant, she gave evidence that there were many like acts to which she was subjected in the bathroom.
16 Charge 12 is another charge of oral penetration, forcing the complainant to fellate you after you had walked in on her in the bathroom, this time when she was in the bath. Again you ejaculated in her mouth.
17 Charge 13 is an indecent act, taking the complainant's hand and placing it on your penis then moving it up and down, making her masturbate you as the two of you sat on the sofa, covered by a rug, and watching TV. Your daughter, who was about the complainant's age and her close friend, was in the room at the time.
18 Charge 14 is a further charge of oral penetration, making the complainant fellate you after you had cornered her in the laundry. Again you ejaculated in her mouth.
19 The jury was unable to agree on Charge 15, a further act of fellatio alleged to have occurred in the bathroom, this time when you walked in on the complainant as she was cleaning her teeth.
20 The complainant gave evidence there were other acts of fellatio and vaginal/penile penetration over the period covered by the charges, events which she was unable to describe with the specificity required for a charge. Having regard to the nature of the charges, and the verdicts, I accept her evidence that there were other like occasions, and that I should not treat the charges of which you have been found guilty as isolated, that is, as the only incidents of sexual abuse of her. In any event, as the verdicts make clear the complainant was repeatedly sexually abused by you over a period of three to four years.
21 She gave evidence that all sexual assaults stopped by the time she was about 14, at, the complainant said, about the time that your marriage came to an end when it was discovered that you had been having a sexual relationship with another woman. According to your former wife, sexual relations with her were normal throughout the marriage and continued up to the time of the break-up of the marriage. That means you were engaging in sexual activity with one adult woman for the duration of the offending, and with another adult woman as well, at least for the last part of the offending for which you have been found guilty.
22 As well as the repeated nature of the offences, there are other features of this offending which mark its seriousness. The complainant was only 11 when it started. She was a child in a family who was bound to you by close family ties. She and her family were beholden to you, they were staying in your home when the offending started, they had just arrived in Australia. You had helped get her father a job and your daughter was her best friend. They shared a room. Having only just arrived in Australia, the complainant was isolated from the family, teachers, or friends from home to whom she might otherwise have been able to turn. Even after her family moved to their own home the two families remained close and constantly in each other's company. Because she and her family were new arrivals in Australia, she had few friends and reliance on extended family was greater than it might otherwise have been.
23 You made her complicit, telling her it was okay and that she was your “good little girl” and it was your secret. You treated her with no respect. The circumstances in which you forced yourself on her were often debasing, particularly these in the truck and when she was emerging from the shower or in the bath. Many acts were painful and she told you so and asked you to stop but you persisted. The first act of penile/vaginal intercourse, of which you have been convicted, not only hurt but made her bleed.
24 You engaged in unprotected sex, ejaculated in her vagina and mouth, and engaged in this unprotected sexual activity with her in circumstances where, on your own account, you were at the same time maintaining sexual relationships with your wife, and at times the other woman. You exposed her to an increased risk as a result of that to the transmission of sexually transmitted disease, and maybe pregnancy as well.
25 The complainant’s evidence was harrowing. The fact that it was pre-recorded did not diminish its force or its emotional impact. She was understated in her language but visibly distressed, and at times embarrassed, as she recounted the acts and described how she felt. At times it appeared to me that she was re-experiencing the emotions that she had felt at the time and reliving the events as she was asked to recount them.
26 She read her victim impact statement aloud at the sentencing hearing. She was dignified, and again understated but visibly distressed as she recounted the impact of the offending on her and the effect on her of making her report to the police, of giving evidence, and of being cross-examined. She confirmed the impression I had gained when watching her evidence, that she felt at times as she gave evidence that she was reliving the crimes. She described the court process as frightening, draining and confronting. She felt angry and sick, and at times as if she was the one on trial.
27 Despite that only too obvious toll that this took on her, and the added strain of what happened after the first trial, the extending of the time before there was a final outcome by the appeal, the quashing of the verdicts, and eventually the retrial, she said this: “I do know it was the right thing to do to speak out about the crime, but the after effects haven’t always been easy."
28 As His Honour Judge Smallwood said when sentencing you on the first occasion:
"There was a trial conducted, and of course you therefore do not get the benefit of any guilty plea, and I have to sentence in the absence of remorse. The complainant was put in a position of going through a trial which her victim impact statement clearly points out she found very distressing. That is the situation in which you find yourself. Conducting the trial of course does not aggravate the offending, it simply removes what is usually the biggest mitigating feature in the sentencing process."[3]
29 As to the effect of the offending itself, as opposed to the effect on the complainant of going through the criminal justice system from reporting to trial then retrial, she said this in her victim impact statement:
"Each individual has the right to decide the path their life will take. I didn't get that right, I felt I was robbed of that and so much more. From the very first moment that it occurred my life had changed forever. The right to decide my life's path had been taken away from me. I was robbed of a normal childhood, the chance to be a kid was also taken from me. I often sit and wonder how my life would be now if this didn't happen to me, what I would be like, what I would be doing now, but this will always be only a thought."
30 Later she said:
"My kids are everything to me, the love I have for them could never be described in words. Ben,[4] my husband, is my soulmate. My love for Ben is like nothing I've ever felt before. Ben and I were unbreakable. It didn't matter what anyone threw at us, it just made us stronger. Since I spoke out about the crime it has had a huge effect on my marriage, my family and my children, it has turned our lives upside down. My relationships with my loved ones have been damaged, my marriage has been destroyed. It has broken Ben and myself. We still love each other but the emotional effects the crime has had on us is like a bomb going off, one after another, the next one worse than the last. I feel that since speaking out about the crime the crime has taken, apart from my kids, the one special thing in my life away. Although we are still together it will never be or feel like it used to. We had something pretty special and the crime has taken that from us."
[4] Pseudonym used.
31 Later she said: "This crime will never go away for me, I live with it every day."
32 And at the end she said this, speaking of receiving news of the verdict after this trial:
"When I received the phone call all I could hear were the words guilty. It was so overwhelming, not once but twice found guilty, it was a lot to process. I suffered sexual abuse at the hands of a man who thought he get away with it, and for years he did, and over those years I've suffered in silence, but silence no more. I have a voice and I will not be hurt by him anymore. I hope that after all of this I can somewhat move on with my life, finally try to be happy, to feel somewhat free of this crime. I've had enough of having the crime take hold of my life, this is my life and it's time for me to start living it, not the crime living it for me. I know it won't be an easy road, it will always be with me, but the crime, speaking out about the crime and going through it all, isn't all that I am. I hope now that I can finally find myself. I can finally be me."
33 That level of understanding of yourself and where you are, what you have been through and where you are now, Ms Burns,[5] suggests that you will indeed be able to move on and to find yourself, not to be defined by that crime and to be happy and to work out who you are, who you want to be, and to shape that yourself with control.
[5] A pseudonym.
34 When you were sentenced by His Honour Judge Smallwood on 21 June 2012[6], His Honour characterised the offending as a gross breach of trust. He noted that four of the five charges that he sentenced you for, which are Charges 1, 2, 7 and 8 in this trial, occurred when the complainant was only 11 and prepubescent. In this case I note that Charges 3 and 4 also occurred in that same time frame. In relation to what was Charge 8 in this trial, and Charge 10 in the earlier trial (that of course is the charge of sexual intercourse in the rear of the truck), His Honour said this:
"You are a large man and one can only speculate as to the confusion and fear that particularly Charge 10 caused when it was perpetrated on this young child." The situation is simple in that matters such as this call for the application of general deterrence, denunciation and appropriate punishment. The law has long said that a society which does not protect its children is a society of very poor function indeed."
[6] (Unreported, County Court of Victoria, Judge Smallwood, 21 June 2012).
35 His Honour also quoted passages from the complainant's victim impact statement, some parts of which I have quoted again here, before saying in his reasons for sentence at [19]:
"That is why offending of this nature carries such significant sentences. I note in your particular situation she was told on a number of occasions it was to be your and her secret experience. It is a position which I said shows is commonly something that is said to a small child, and in their confusion and not understanding they abide by it."
36 I adopt and endorse what His Honour has said in those passages that I have quoted.
37 Mr Backwell tendered the transcript of the plea hearing conducted before His Honour Judge Smallwood. He adopted the matters put on your behalf on the first plea, including specifically the evidence that you had been a good father to your own children and a good provider to your family, the evidence of your continued family support, and what His Honour rightly characterised as the impressive evidence of good character led from your former partner, your present partner and your son, as well as the 15 other testimonials which had been tendered on the first occasion. I too accept that evidence and adopt what His Honour said about that in [21] of his reasons for sentence. The care you have shown to your own daughter, a child about the same age as the complainant, and after her arrival in Australia her closest friend and confidante during the period of offending, stands in stark contrast to the cruelty of abusing your niece in the way you did.
38 I adopt the personal history and findings about your history of hard work since leaving school at 15, your loyalty to your family and the active role that you have played in family life and affairs, and that are set out in [22], [23] and [26] of His Honour's reasons.
39 His Honour took into account in your favour, as do I, that your sentence will have to be served in protection, that the offending apparently ceased of your own volition, and the active and supportive role that you have played in your extended family. His Honour found that, whilst not amounting to exceptional circumstances, the sentence of imprisonment would be harder for you than it might be for other prisoners because your partner and her young child live in Tasmania and contact would be less frequent with them than it would be if she lived in Victoria.
40 Although prediction of future risk is difficult at the best of times, and all the more so when a person has pleaded not guilty, and so has not only denied the offending but advanced no explanation for the offending which has been found to have occurred, I too consider that on the material presently available to me your prospects of reoffending are likely to be low and your prospects for rehabilitation are likely to be good.
41 I accept Mr Backwell’s submission that authority dictates that there needs to be good reason to depart from the sentences imposed on the first occasion for those matters of which you were convicted last time. The only difference in the evidence at this trial and the first was your sworn evidence. As I noted earlier, in a different context, the recordings of the evidence of all witnesses other than the informant was relied on as the evidence in this trial. I do not consider that the evidence that you gave on this trial provides any rational basis for departing from that general principle that the sentences imposed in respect of the offences of which you were convicted the first time should be the same on this occasion. It follows that the sentences that I impose for the offences of which you were convicted for the first time in this trial should conform with that same pattern.
42 On the charges of fellatio where there is clear evidence you ejaculated in the complainant’s presence, that is Charge 4, or in her mouth, Charges 10, 11, 12 and 14, the sentence that I impose is a little higher than the sentence imposed for those charges where there is no evidence of ejaculation in her presence or in her mouth.
43 Similarly, the sentence on Charge 9, the other charge of penile/vaginal intercourse, is greater than the sentence on Charge 8 because there is clear evidence there that you ejaculated inside the complainants vagina. In order to conform with the principle of totality the periods of cumulation between the charges, or some of them, will have to be shorter, but as the number of episodes, ten on this occasion as opposed to four in the first trial, and here two sets of charges involving two discrete acts of penetration on two charges as opposed to only one double charge episode in the first trial, and the number of charges, 12 on this occasion as opposed to five on the previous occasion, together with the evidence of ejaculation in the complainant’s presence or body, means that the total effective sentence and the non-parole period will be greater than on the first occasion.
44 You fall to be sentenced as a serious sexual offender from Charge 3. I make the declaration accordingly. There is no warrant for total cumulation, having regard to the principle of totality and the number of charges of which you have been found guilty, nor is there a need to impose a disproportionate sentence in order to protect the community.
45 Under the mandatory provisions of the Sex Offender Registration Act you must be registered and report for life.
46 Jerry Burke, on all charges of which the jury has found you guilty you are convicted.
47 On Charge 1 you are sentenced to be imprisoned for a period of three years and I direct that four months of that be served cumulatively upon the other partial cumulation orders and the base sentence.
48 On Charge 2 I sentence you to be imprisoned for three years and four months of that is to be served cumulatively upon the other partial cumulation orders and the base sentence.
49 On Charge 3 you are sentenced to be imprisoned for a period of three years and four months of that sentence is to be served cumulatively upon the other partial cumulation orders and the base sentence.
50 On Charge 4 you are sentenced to be imprisoned for a period of three years and three months and I direct that five months of that be served cumulatively upon the other partial cumulation orders and the base sentence.
51 On Charge 7 you are sentenced to be imprisoned for a period of three years and I direct that four months of that be served cumulatively upon the other partial cumulation orders and the base sentence.
52 On Charge 8 you are sentenced to be imprisoned for a period of four years and I direct that nine months of that be served cumulatively upon the other partial cumulation orders and the base sentence.
53 On Charge 9 you are sentenced to be imprisoned for a period of four years and six months, that is the base sentence.
54 On Charge 10 you are sentenced to be imprisoned for a period of three years and six months and I direct that six months of that be served cumulatively upon the other partial cumulation orders and the base sentence.
55 On Charge 10 you are sentenced to be imprisoned for a period of three years and six months and I direct that six months of that be served cumulatively upon the other partial cumulation orders and the base sentence.
56 On Charge 12 you are sentenced to be imprisoned for a period of three years and six months and I direct that six months of that be served cumulatively upon the partial cumulation orders and the base sentence.
57 On Charge 13, the charge of indecent act, you are sentenced to be imprisoned for a period of two years and I direct that six months of that be served cumulatively upon the other partial cumulation orders and the base sentence.
58 And on Charge 14 you are sentenced to be imprisoned for a period of three years and six months and I direct that six months of that be served cumulatively upon the base sentence and the other partial cumulation orders.
59 That makes a total effective sentence of nine years and six months and I direct that you serve a period of five years and six months before being eligible for parole. Pre-sentence detention to date is 612 days?
60 MS CHURCHILL: Correct Your Honour.
61 HER HONOUR: I declare that you have spent 612 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served, and I order pursuant to s.464ZF of the Crimes Act that a forensic sample be taken from you. I am directing that to be taken by way of a buccal sample, that is a mouth swab. I must tell you Mr Burke that if you do not co-operate in the provision of the sample, which will require you to rub a swab like a cotton bud on the inside of your mouth until a sufficient sample has been obtained, then the police are authorised to use reasonable force to obtain that sample and it is likely that they will use the more invasive means of obtaining a forensic sample, namely the taking of a blood sample. Do you understand that?
62 OFFENDER: Yes I do.
63 HER HONOUR: I make that order having regard to the seriousness of the offences and noting that it is by consent. I'll ask your solicitor to take the conditions of the Sex Offender Registration Act, the reporting conditions, to you. I am required to ask you to sign a receipt acknowledging that you have received that. You are not obliged to do so, the court record will show you have received it in any event, but I will have that taken down and you can sign the receipt if you wish. Whilst that's happening can you check the arithmetic Ms Churchill?
64 MS CHURCHILL: My instructor has kindly and it adds up Your Honour, thank you.
65 HER HONOUR: And are there any other orders that are required to be made?
66 MS CHURCHILL: No Your Honour.
67 HER HONOUR: Do the orders I have pronounced reflect what I said I intended to do?
68 MS CHURCHILL: I believe so, yes Your Honour.
69 HER HONOUR: Yes thank you. Thank you I note that you have been given the copy of the reporting conditions and signed the acknowledgement. Ms Valos have you had a chance to check the arithmetic?
70 MS VALOS: I have Your Honour, yes.
71 HER HONOUR: Correct?
72 MS VALOS: Correct, yes.
73 HER HONOUR: Any other orders that are required to be made?
74 MS VALOS: No, no other orders Your Honour.
75 HER HONOUR: And do the orders that I have pronounced reflect what I said I intended to do?
76 MS VALOS: Correct Your Honour.
77 HER HONOUR: Yes, thank you. Could you remove Mr Burke please? Adjourn.
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