Director of Public Prosecutions v Burkitt (a pseudonym)

[2018] VCC 828

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOBY BURKITT (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2018
DATE OF SENTENCE:	6 June 2018
CASE MAY BE CITED AS:	DPP v Burkitt (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 828

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – incest – indecent act with a child - 
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v PJB [2007] VSCA 242; Director of Public Prosecutions v Toomey [2006] VSCA 90; R v Better [2003] VSCA 71; R v Hunter [2006] VSCA 9
Sentence: Convicted and sentenced to a community correction order of three years, including 200 hours of community work 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Doyle	Office of Public Prosecutions
For the Accused	Ms M. Tatas	Stuthridge Legal

HIS HONOUR

1Mr Burkitt[1] is aged 38.  He was born on the 18th day of May in 1980.

[1] Toby Burkitt is a pseudonym

2He has pleaded guilty to two charges on indictment No.G13520342.

3The DPP in this matter was represented by Ms Roodenburg, and Ms Doyle appears today. Mr Williams appeared on behalf of Mr Burkitt, Ms Tatas today.

4The first of the charges, both charges are representative, is a charge of incest under s.44(4) of the Crimes Act, as it then stood.

5The offence was committed at Jeffrey Road in Kyneton against his sister, Abigail,[2] on the 31st day of December 1996.  At that time, Mr Burkitt was between 15 and 16 years of age, and given the representative nature of this crime and his sister between 5 and 6.

[2] Abigail Burkitt is a pseudonym

6The crime involved masturbating while digitally penetrating his sister.  The representative aspect of it is that in the period to April 1997, it is suggested that it happened on a second occasion in similar circumstances.

7The penalty imposed at the time for incest was five years.

8The second count of indecent act with a child, an offence against s.47(1) of the Crimes Act carried with it, at the time, a penalty of ten years.

9Insofar as the indecent act was concerned again, as I have said, it is also a representative charge.  The initial act involved the same circumstances as were earlier referred to, however, subsequently his penis was placed close to the outside of Abigail's vagina and he masturbated onto her skin.  That makes up the indecent act.

10Insofar as it being representative, on a second occasion, the representative circumstance is that Mr Burkitt used Abigail's hands together with his own hands to masturbate and ejaculate.

11The plea was entered into on the basis that it is accepted that apart from those charged occasions, there were other uncharged acts relating to sexual assaults upon Abigail committed by Mr Burkitt, but the period as detailed by him in his record of interview over a period of some three to six months.

12The point to be made, insofar as the sexual activity is concerned, given the difference in ages, is that the assaults stopped of Mr Burkitt’s own volition, about which there appears to be no issue.

13As to the complaints made by Abigail, initially her first report of these crimes was made in 2005 by way of a general report to a school friend.  That led to a councillor, and indeed the headmaster of the school, and thereafter the police being involved. However, the circumstances were such that Abigail did not want to pursue the matter at the time.  Apparently, she was in denial, and denied the events and indeed ran away at the time.  Apparently, the police were brought to the school.

14In 2006, the mother of both children read the diary of Abigail.  The facts of assault was disclosed and she became aware of the sexual abuse, however, at the request of Abigail, and for personal issues being experienced by Abigail at the time, the matter was apparently not put to Mr Burkitt.

15Ultimately, a complaint was made to police by Abigail in 2015 and what followed thereafter was a pretext call which took place in the August of 2016.  In that call, Mr Burkitt said that the period of sexual assault took place over a period of between three and six months.

16It also was noted that he had previously apologised, which Abigail recalled somewhere between 2010 and 2012.  He has said in that call that he understood she had forgiven him as of 2012, and indeed having so apologised, he sought permission from Abigail to tell his wife of these circumstances and in fact did so.

17Mr Burkitt was subsequently arrested and entered into a record of interview on 26th day of December 2016. At committal in October of last year, the matter was resolved to the plea that is before the Court now.

18The victim impact statement of Abigail was filed as Exhibit B, dated the 13th day of April of this year.  That statement is clearly traumatic.  It involves long term emotional distress suffered by Abigail which led unfortunately in her younger years to self-abuse and scarring, anorexia nervosa and what she describes as refeeding syndrome.

19Abigail also describes the mental torment rendered to her as a result of such offending, the reduced self-worth, loss of self-confidence and the development of major depression, post-traumatic stress disorder and misguided penance.

20Fortunately, despite all of that, Abigail has been able to achieve academic success, has been able to achieve a nursing career, she has a Biomedical Honours Degree and she appears now to be settled with a new partner, Matt.

21Such is not in any way to gloss over the matters referred to in the victim impact statement, but no doubt it will be of assistance to Abigail to have these matters finally aired and dealt with.

22The one thing that can be said about these crimes is that there is nothing positive for victims, as Abigail's victim impact statement shows.  Not only did such crimes have a dramatic impact on her, but obviously on the whole family.

23Exhibit 1 has been tendered which is a formal apology by Mr Burkitt. Such apology is totally consistent with his actions, when confronted by the police and with the plea.

24There is no doubt that behaviour of this type, given the age difference, is objectively very serious, and I so find.  The sexual abuse of a younger sister in such circumstances is to be classified as high objective criminal culpability.

25In the plea conducted by Mr Williams, who made written submissions dated 12 April, Exhibit 4, stressed first the issue of remorse of Mr Burkitt. That he had actual remorse, not just remorse effected by the plea but he has effected actual remorse and that such is genuine.  This has been confirmed by Mr Cummins, the psychologist, by the actual apologies made to his sister before these matters came before the Court and/or to the police attention and, as I say, by the formal apology tendered in this Court.  His remorse is also clearly confirmed and supported by the statements from various friends and family set out in Exhibit 3.

26The second matter put by Mr Williams was the rehabilitation effected.  In Mr Burkitt's life, apart from these matters that occurred when he was 15 and 16, there has been no criminal activity whatsoever.  He effected a very successful education which led to him being an airline pilot and employed by the Air Forces, and indeed an air-traffic controller and finally appointed supervisor in that position post 2008.  He is a married man with a wife, Chloe, and four children.

27As Mr William's said, Mr Burkitt has accepted responsibility for these crimes and does so by his plea.  At no stage, did he attempt to shift the blame.  He has expressed apology and shame for his crimes appropriately, not only to the persons identified in the various character references but as detailed by the psychologist, Cummins, in the report Exhibit 2 at paragraph 40.

28The next matter stressed was the age of offending and I will come to that matter when I refer to a particular case but clearly the age at the time was between the ages of 15 and 16, and it is to be noted that the actual offending took place now some 22 years ago.

29The references tendered clearly speak to his rehabilitation.  They, in reading those references, provide strong support for Mr Burkitt, strong emotional support and strong empathy, and in particular empathy for the victim.

30I note that the statements, which I have recently, reread and which come under that general title that I have given them, involve church friends, friends, his aunty, father, mother, squadron leader or former squadron leader, Squadron Leader Lynden, Reverend Hayman and his wife, and his own wife and daughter.

31As I say, all are strongly supportive of the propositions put by Mr Williams as to the successful life, in all respects led by Mr Burkitt, but for this very unfortunate criminal activity at a young age.

32There has also been extra curial punishment.  He is particularly concerned as to his job.  It seems to be that is a genuine concern, given that we heard at the last hearing from Wing Commander Layton, who explained the various termination notices which are tendered, Exhibit 5, 6 and 7.

33Without being overly critical of the Air Force, it seemed to me that experience shows the Forces generally have been very slow to catch up with community standards.  It seems perhaps they have gone too far in this instance.  It seems, as I have already expressed, amazing that such serious actions as termination notices would be taken, before the matter was determined by this Court.

34One would hope that after this Court sentence is pronounced, that a more enlightened approach will be taken insofar as his employment is concerned.  In particular that whoever makes up the panel that makes the determination, understands the concepts set out by the Court of Appeal, which I will go to, in R v PJB [2007] VSCA 242.

35Further, one would hope that such body would take account of the sentencing remarks of this Court, and indeed the submission of the Director of Public Prosecutions, in this case that a community correction order was appropriate, and indeed my whole sentence.

36Insofar as PJB, the sentence was imposed some 24 years following the offences.  There were more counts involved and they were all indecent assaults.  There is similarity, and yet there are other matters that need to be differentiated.

37The matter went to trial, there was no contrition showed.  The offending in that matter, being the eight counts, took place over a period of four years.  When approached by the police, a no-comment record of interview was made and of course since that time, as to the ultimate decision, the ability for suspension of sentences has changed as well.

38The original sentence imposed by the trial judge, in PJB, was 43 months gaol with a period to be served of 24 months before being eligible for parole.

39The following matters were discussed by the Appeal Court, and particular at paragraph 15 under the heading, "Failing to give appropriate weight to appellant's age at the time of offending," the Court said,

"…moral culpability has to be judged to be less, particularly in the case of offences committed when he was a child; and that great weight would have been given to maximising his prospects of rehabilitation, with the result that he may have been sentenced to either, at the time, custody in a youth training centre or been given a non-custodial sentence.  Further, counsel points out that although the judge stated he took youth into account, that if the matter had come to light at that time he would have been sentenced in the Children's Court at least in respect of the earlier offences."

40They went on at paragraph 16 to quote two earlier cases and that,

"…where offences have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty.  Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done as a child, as a person of immature years, and not as an adult or a person of greater maturity." (My underlining)

41It was accepted as correct that general deterrence ordinarily therefore has a lesser role to play in the sentencing of children, and in immature children, than in the case of mature adults, and that it was significant in that case that the appellant had not reoffended for more than 24 years.

42It was also noted that the sentence would have a substantial impact on the appellant's employment and social activities, and there was also appropriate reference to the seriousness of the offending, albeit not exposed for some time.  There was reference to the comments of Vincent JA in Director of Public Prosecutions v Toomey that ordinarily where an adult offender is to be sentenced for offences involving sexual abuse of young people, the principles of general deterrence and denunciation remain at the forefront. However, the Court of Appeal went on to say, for the reasons I have already explained, it is different where the offender was a young offender at the time of the offending and has rehabilitated.

43Prima facie, general deterrence and denunciation do not play the same role in the sentencing of young offenders, and it would be logically unfair to lose sight of that when it comes, years later, to sentencing the offender as an adult.

44As Buchanan JA said in R v Better,

“…the lapse of time since the commission of the offences and the rehabilitation effected by the applicant militate against the imposition of a sentence longer than that which is proportionate to the gravity of the offences in order to protect the community from the appellant".

45In the determination in that case by Ashley JA it was noted that His Honour took the view that the trial judge in imposing the imprisonment sentence that he did, permitted consideration of the long-term effects, which I have already referred in detail, to the victim to dominate his thinking, and unduly colour the assessment of the numerous matters for consideration which were required.

46In that case, the Court was of the view that the judge had seriously undervalued the youth, and to a lesser extent the moral culpability, of the offender.

47Insofar as that case was concerned, what the court did essentially was to determine that there would be no further gaol served by the use then of what was available of a suspended sentence.

48I refer to those matters for general principles, not only for the purposes of this Court, but as I have already said to the purpose of the authority that determines Mr Burkitt's employment with the Air Force after this time.

49The submission put in this case ultimately, as a result of all of those matters, by Mr Williams was that a community corrections order would be appropriate.  As I say, it is of importance that indeed such also was the submission made by the Director of Public Prosecutions, quite professionally I consider, having taken account of all the circumstances.

50Insofar as that submission was concerned, given the application, I sought a community corrections report, that became Exhibit C.  That community correction report was positive, I do not, however, accept the comments made in that report that there is a need for supervision.  I see not the slightest risk to the community, or to any member of the community, of any sexual impropriety by Mr Burkitt.

51The proposal was that generally there be programs offered to ensure no reoffending, which I am sure there certainly will not be, however, I certainly do not concur with the report that there is any need for participation in a SOATS-type program.

52As I say, I accept the joint submission of both counsel, as to both charges given they both are representative.  I take into account and sentence in regard to those representative charges on the basis of the principles set out Hunter [2006] VSCA 9, and I refer in particular to the reference to Reiner [17] thereof and also the determination of Mr Justice Batt at [67] to [70] insofar as how the court goes about determining and sentencing in regard to representative counts.

53The further submission made was that, in addition to a community corrections order, pursuant to the provisions of s.8(1), there be no conviction recorded. I was referred to the actual section and the three matters to be taken into account are the nature of the offences, the character of the person and the impact by way of economic well-being and on one's employment.

54Clearly, upon the material before the Court, if in fact Mr Burkitt’s employment was terminated, despite what the Court had pronounced, there would be a grave impact in regard to his economic well-being and employment.  There is not much I can do about that, except ask, as I have, the authority to take into account the general principles of law that apply, and should apply to their consideration, and the remarks made by this Court.

55However, giving consideration to the submission, in the end it is my view that it is not appropriate not to record a conviction, predominantly because of the nature of these offences.  These offences are culpable criminal matters committed, albeit as a child, in circumstances which have rendered a young girl subject for the rest of her life to the consequences of such criminality.  It seems to me it would be totally inappropriate not to record a conviction, in regard to both of these crimes.

56The impact of that, it seems to me, does not really have much dramatic importance, insofar as his employment is concerned.  One would have thought again, on appropriate principles, whether a person is convicted or found guilty, it does not really make much different to the overall consideration. The principles that I have referred to should be the ones involved when persons are considering whether to take decisions which impact on the person's employability and their ability to earn income, in circumstances where such criminality took place when they were children, and thereby under-age.

57In those circumstances, I find, that a conviction should be recorded. In regard to both offences, pursuant to the provisions of s.40, I would impose a community correction order.

58I would intend that such order be for a term of three years, that there be a work requirement during that period of 200 hours.  I will not limit or determine when that is carried out that it represents some form of punishment and that as directed and suggested that general courses be undertaken to ensure no further offending, of which I am totally satisfied there would be none, and I would not direct that those hours in any courses be deducted from the work requirement, that is that I intend the work requirement to be fulfilled.

59Insofar as the requirements of s.6AAA, clearly the plea of guilty in this matter has been particularly important in the determination of the sentence.  As was put to the Court, it represents not only a utilitarian aspect because it saves the matter being litigated, and indeed there is much about this case that perhaps was not as certain as might otherwise be but it was not disputed at all and the case went ahead on that basis but it does indicate remorse in addition to the genuine remorse that I have indicated and of course saves the victim in this circumstances.

60The view of the Parliament is that persons who plead guilty should be able to be advised that that plea has a worth in the sense of the court advising that had Mr Burkitt not pleaded guilty, what the consequences would have been.  The problem is that one is required to make that determination taking into account only the issue as to the plea of guilty.

61However, doing as best I can, I indicate that had Mr Burkitt not pleaded guilty, he certainly would not have been given a community correction order and would have been given a period of imprisonment.  It seems to me I have got enough involved in considering the case, without wondering what the precise term of imprisonment might have been.

62Before entering into that community correction order, Ms Tatas, could you check with your client, firstly, before we get him to sign that, that he is happy to enter into that CCO, that he is aware of his obligations. It is the intent of Parliament that these conditions be complied with, and that any breach thereof be viewed very seriously by this court and the consequences would be serious.

63MS TATAS:  Yes, Your Honour.  May approach him?

64HIS HONOUR:  Yes.

65MS TATAS:  Yes, Your Honour.  Mr Burkitt understands those matters.

66HIS HONOUR:  Yes, well, I will make such order accordingly.

67MS TATAS:  As Your Honour pleases.

68HIS HONOUR:  Yes, Madam Prosecutor, what I was thinking to ensure that there would be no possibility of any embarrassment caused by this sentence that there should be a suppression order in regard to the names in this case.

69MS DOYLE:  Yes, Your Honour.  I think that is appropriate.

70HIS HONOUR:  And we would anonymise the actual report.

71MS DOYLE:  As Your Honour pleases.

72HIS HONOUR:  I do not do that, I make it clear, to protect Mr Burkitt in any way but of course to protect his sister.

73MS DOYLE:  That is appropriate, Your Honour.

74HIS HONOUR:  Yes.

75MS DOYLE:  Thank you.

76MS TATAS:  As Your Honour pleases.  Your Honour, may I request a written version of this sentence.

77HIS HONOUR:  You may.

78MS TATAS:  Is that a possibility?

79HIS HONOUR:  It will come out soon.  Maybe later rather than sooner because I am about to go on leave ‑ ‑ ‑

80MS TATAS:  As Your Honour pleases.

81HIS HONOUR:  ‑ ‑ ‑ but we will see but it will certainly be provided.

82MS TATAS:  Thank you, Your Honour.

83HIS HONOUR:  Usually it takes about three or four days.

84MS TATAS:  As Your Honour pleases.

85HIS HONOUR:  Whether I need to finalise it, I am not sure so, if I can get it out, I will but certainly it will not be long.

86MS TATAS:  Thank you, Your Honour.

87HIS HONOUR:  Can you sign this?  Yes, good luck, Mr Burkitt.  Yes.

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