Director of Public Prosecutions v Burns (a pseudonym)
[2025] VCC 319
•21 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON BURNS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 March 2025 | |
DATE OF SENTENCE: | 21 March 2025 | |
CASE MAY BE CITED AS: | DPP v Burns (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 319 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Found guilty at trial – Sexual penetration of a child under 16 – Indecent act with a child under 16 years – No prior criminal history – Indecent assault – Bugmy – Verdins – Delay – Mature aged offender – Guarded prospects of rehabilitation –– Serious offender.
Legislation Cited: Crimes Act 1958 ss 39(1), 45, 47; Sentencing Act 1991 ss 6D, 6E, 6F, 18; Sex Offenders Registration Act 2004 s 34(1)(c).
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; DPP v Sabatucci [2021] VSCA 340.
Sentence: Imprisonment for a period of 8 years with a non parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Menon | Office of Public Prosecutions |
| For the Accused | Mr C Grant | Dribbin and Brown |
HIS HONOUR:
Introduction
1Jason Burns[1], you have been found guilty by jury of:
(a) two charges of indecent act with a child under 16 years contrary to s 47 of the Crimes Act 1958 (‘Crimes Act’) which carries a maximum penalty of 10 years imprisonment (Charges 1 and 8);
(b) two charges of sexual penetration of a child under 16 contrary to s 45 of the Crimes Act, which carries a maximum penalty of 15 years imprisonment (Charges 4 and 7); and
(c) two charges of indecent assault contrary to s 39(1) of the Crimes Act which carries a maximum of 10 years imprisonment (Charges 9 and 10).
[1] A Pseudonym.
2You have no prior criminal history.
Circumstances of the offending
3A document entitled Summary of Prosecution Opening after Trial was tendered on the plea. The document particularises the offending in relation to the charges to which you were found guilty and in my view is consistent with the verdicts of the jury.[2]
[2] Cheung v The Queen (2001) 209 CLR 1, [14], [162].
4You were born in November 1957 and resided at an address in Hampton Park at the time of the offending.
5You were married to Mary Burns[3] who is the sister of Alex Marshall[4]. Alex Marshall is married to Kate Marshall[5] and three of the victims are the children of Kate and Alex Marshall.
[3] A Pseudonym.
[4] A Pseudonym.
[5] A Pseudonym.
6Each of the victims in this matter are your nieces:
(a) Jessica Marshall,[6] born in April 2002;
(b) Alice Marshall,[7] born on in August 2004;
(c) Emma Marshall,[8] born in February 2007; and
(d) Hailey Blair,[9] born in September 1993 (Ms Blair is the cousin of the Marshall sisters).
[6] A Pseudonym.
[7] A Pseudonym.
[8] A Pseudonym.
[9] A Pseudonym.
7You were close to the victim’s families. They would regularly spend time with you and your family at your residence in Hampton Park.
Offending in relation to Jessica Marshall
8On an occasion between 25 April 2012 and 24 April 2016, when Jessica Marshall was between the ages of 10 and 13, she would sleep over at your house. You would ask her to sleep with you on a mattress in the sitting room. On other occasions, she would sleep on a separate mattress.
9On one occasion Jessica woke up and your hands were down her pants in the ‘butt’ area, underneath her underwear (Charge 1 – Indecent Act with a Child Under 16).
10Jessica told her cousin, Ashlee Jackson[10] what had happened. She told Ms Jackson that she would wake up during the night and that your hands were in her pants, touching her private parts.
[10] A Pseudonym.
11Jessica told Ashlee that you did similar things to her sisters Alice and Emma. Jessica also spoke to her sister Alice Marshall about the offending when the family were on holiday in Samoa.
Offending in relation to Alice Marshall
12On an occasion, between 8 August 2015 and 7 August 2017 when Alice was between 11 and 12 years old, Alice was in the sitting room of your home. She was lying down on her back and you were holding her down so that she couldn’t move. Your face was between her legs, and you were licking her vagina. Your tongue went a little inside her vagina. (Charge 4 – Sexual Penetration of a Child Under 16).
13On another occasion between 8 August 2015 and 7 August 2017, when Alice was between 11 and 12 years old, Alice was sleeping in the sitting room of your home. Alice began to wear onesies at night as she did not want you to pull down her shorts.
14Alice woke up and her onesie was already zipped down. Your hand was in her onesie, and you had one finger inside her vagina, moving it in and out. Alice stated that your whole finger went all the way in.
15Alice tried to push you away twice by reaching down to move your hand away, but it didn’t work. She lay there until you finished, and then you zipped up her onesie. (Charge 7 – Sexual Penetration of a Child Under 16)
16On an occasion after church, you hugged Alice ‘out of the blue’ and wrapped your arms around her and hugged her tight. She tried to pull away but couldn’t, saying you held her for ‘way too long’.
17In early 2018, Alice and her family went to Samoa for a holiday. You were in the car with Alice on the way to the airport in the backseat and put your hand on her thigh. Alice kept pushing your hand off.
18In Samoa, Alice told Jessica that you kept touching her, and would always try and touch her private areas.
Offending in relation to Emma Marshall
19On an occasion between 18 February 2017 and 17 February 2018, when Emma Marshall was between 9 and 10 years old, she was at your house. It was nighttime, and all the other parents were in their rooms. Emma was lying down, and you came and laid down behind her. You put your hand under her shirt and started touching her breast. You were also touching her stomach and tried to put your hand down her pants. Emma wouldn’t let you and became confused and upset. You then got up and left. (Charge 8 – Indecent Act with a Child Under 16)
20A few days later, Emma was again at your home. She fell asleep and was woken up by you behind her, ‘humping’ her. You then got on top of her and tried to kiss her. She couldn’t breathe, and you got off her.
21You would do the same thing whenever Emma slept at your house. She woke up with you on top of her on about two or three occasions. You would try to put your hand under her clothes, touch her, and sometimes you would be behind her ‘humping her’ through a blanket after pulling her pants down.
22In early 2018, when the family were on holiday in Samoa, Emma overheard Alice and Jessica speaking and told them what had happened to her.
23On 8 November 2019, Emma disclosed the offending to Pru Hyde,[11] a staff member at Secondary College in Narre Warren. Emma told Ms Hyde that there was something serious and bad that happened to her by someone close to her family. She told Ms Hyde that it happened when she was in Grade 5 and that she had only told her older sisters Alice and Jessica.
[11] A pseudonym.
24Emma told Ms Hyde that it happened in the sitting room on more than one occasion at night while she slept on a mattress on the floor, and that her uncle, who lives in Hampton Park, would touch her on the breast through her clothes.
25Emma told Ms Hyde that she decided to open up about it because she had read a story on Instagram about a girl who went through a similar situation. Ms Hyde immediately informed the school principal and other staff members, as well as reported it to the police and Child Protection.
Offending in relation to Hailey Blair
26Hailey Blair resided with her father in Cranbourne North during the time of the offending. Whilst living with her father, she would visit you and her aunt at your Hampton Park residence.
27On an occasion between 13 September 2012 and 12 September 2014, when Ms Blair was aged between 19 and 20 years old, she was dropped off at your house by her father. Ms Blair was going to stay the night and had with her a duffle bag filled with clothes. When she arrived, you and your wife, as well as another family member were present.
28Ms Blair was at the house for approximately 5-10 minutes before her mother and aunty left to go to bingo. After they left Blair on was on the couch in the lounge room, and you were sitting on a mattress which is where you slept when a family member was using your bedroom.
29Ms Blair was on her phone when you said, ‘come here’. She got off the couch and stood next to you, and you told her to ‘come lie down.’
30Ms Blair lay down next to you on the left side of the mattress. She was laying on her stomach when you put a sheet over the top of you both before reaching over and touching her breasts in a massaging motion (Charge 9 – Indecent Assault). After a minute or two, you started to touch her bottom on the right side in the same way you touched her breasts (Charge 10 – Indecent Assault).
31While you were touching Ms Blair’s bottom, she sent a message on her phone to Patu asking if he could come out of his room. About 30 seconds later, Patu came out of his room and started walking around the back area of the house. As soon as he did this, you told Ms Blair to, ‘go make some food’.
32Ms Blair got up and left the lounge room and went to the closest bedroom where she called her sister and told her what had happened. Whilst Ms Blair was on the phone, some of her cousins came home. Ms Blair remained in the room for a while as she was crying.
33On 14 December 2019, Ms Blair, who was living in New South Wales at the time, attended an unveiling of a headstone at the Dandenong Community Cemetery with other family members. Following the unveiling, there was a feast attended by the family at a house in Berwick.
34Whilst at the feast, Ms Blair approached her aunt. Her aunt had been told by her nephew about you and Jessica, Alice, and Emma.
35Ms Blair told her aunt, ‘you know this happened to me too?’. Her aunt asked Ms Blair exactly what had happened. Ms Blair provided details of the events leading up to the assault.
36On 17 December 2019, you participated in a ‘no comment’ Record of Interview.
37Following the reporting by Ms Blair to New South Wales police, you declined to participate in a second interview due to COVID-19 concerns and after seeking independent legal advice.
38On 14 February 2023, you declined a subsequent interview following the reporting of allegations by Alice Marshall.
Nature and gravity of offending
39When considering your offending as a whole, plainly it is very serious. You offended against four of your nieces over an extended period, in circumstances where there was a high level of trust that you should have maintained. Evidence was given at the trial that you occupied a position of authority in the family and from a cultural perspective, you were also given a title as a ‘chief’ or cultural leader. Your family and your community looked to you for leadership and guidance. As such the position you held in the family and wider community in my view elevates the breach of trust in this instance and the seriousness of your conduct.
40Mr Menon who appeared on behalf of the Director of Public Prosecutions, pointed to a number of features that he submits inform the assessment of your moral culpability including:
·the ages of the Marshall children;
·the offending against Alice and Emma occurred at night when they were sleeping at your home. In evidence, Alice said that she was being held down by you in relation to the offending the subject of Charge 4 and was trying to push you away in relation to Charge 7;
·the high level of trust over the safety of the Marshall children. There was also a level of trust in relation to Ms Blair, although she was an adult;
·the offending occurred against each of the victims while they were staying at your home; and
·your offending demonstrated a sexually motivated pattern - the prosecution also relying on the uncharged behaviour as outline above in relation to Emma Marshall to support that contention.
41In relation to the sexual penetration charges (Charges 4 and 7), Mr Menon submitted that they are serious examples of the offence and sit around the mid range.
42Mr Grant who appeared on your behalf, while accepting the above propositions as relevant to the assessment of the gravity of your offending, submitted that there are features of aggravation not present in this instance such as the absence of threats or violence.
43I concur with the submissions of the prosecution when assessing your offending and in the assessment of where Charges 4 and 7 fall in terms of seriousness. Further, while there may be an absence of certain features of aggravation, in all the circumstances in my view your moral culpability remains high.
Victim impact statements
44Five victim impact statements were tendered on the plea, which I have read and taken into account.
45Each statement powerfully describes the devastating pain your offending has had on each respective victim. Collectively, the theme from these statements is the profound sadness and anger your nieces and their families have endured as a result of your offending.
46One of the victims speaks to the impact and trauma of having to speak to lawyers and counsellors over the course of the six years of your legal proceedings. Your victims have had to re-live the events of your offending while the criminal process unfolded.
47Alex Marshall, father of three of the victims also speaks to the emotional and social suffering himself and his daughters have experienced due to your offending. He describes that as a father, it is unbearable to witness his daughters pain knowing he cannot undo what has been done to them. He describes suffering overwhelming anxiety which has led to severe depression, sleepless nights and the need for medication. He further speaks to the financial burden your offending has put on the family due to the need for unexpected counselling and medical support.
Personal circumstances
48You grew up in a small Samoan village and were raised in a family of five brothers and two sisters. Your family struggled financially resulting in you being given away to live with your father’s cousin when you were around 8 years old. You returned at age 14.
49Your aunt and uncle had seven children of their own and you found living with them challenging. They supported you throughout your schooling and development however, food was often scarce. You were harshly disciplined by your family members and worked daily on the plantation.
50You were a good student in school, however you report you ran away in the earlier years after a teacher sexually assaulted you. You returned home at age 14 and your parents enrolled you into a boarding school which you completed up to year 11. After graduating, you began employment with the Samoan Health Department working in accounts.
51You married your wife in 1981 and together you share six children. In 1988 your family migrated to New Zealand where you obtained employment as a process worker in a plastics factory.
52You moved your family to Australia in 2000 and upon arrival began working as a truck driver which you continued up until your retirement. You and your wife brought many of your adult children and nieces and nephews to Australia, all of which have stayed in your family home until they established themselves.
53Your social and home life centres around your family and you speak very proudly of all your children. You and your wife are active members of the Congregational Christian Church of Samoa and have taken in and housed many family and community members since your arrival in Australia.
54In terms of your physical health you suffer from arthritis, and you are prescribed Metformin for type 2 diabetes. You are undergoing investigation for a lung disorder; however tuberculosis has been excluded as a cause. You also suffer from sleep apnoea and you sleep in a reclining chair in prison to alleviate this condition.
55A psychological report of forensic psychologist Pamela Matthews dated 4 March 2025 was tendered on the plea and provides insight into your personal and psychological history.
56Ms Matthews conducted psychometric testing and formed a clinical view as to your psychological profile. She is of the opinion that you present with a diagnosis of Major Depressive Disorder, characterised by a persistently low mood. Since being charged, your depressive symptoms have been causing significant distress and impairment in social, occupational, and other important areas of functioning. You have lost twenty-seven kilograms since your incarceration saying you are uninterested in eating, and you report being unable to sleep, waking repeatedly each night.
57Ms Matthews further opines that you present with a provisional diagnosis of Moderate Neurocognitive Disorder, indicating that you display significant cognitive decline in areas of complex attention and executive functioning. Your current cognitive test results signalled a substantial impairment in mental performance. That said, Ms Matthews is also of the view that your deficits do not interfere with your capacity for independence in everyday activities within the custodial setting.
58Ms Matthews assessed your current risk of further sexual offending to be low. However, your conviction in this matter indicates a diagnosis of Paedophilic Disorder as described by the DSM5 in that your offending involved behaviours of sexual activity with prepubescent children at or under the age of thirteen over longer than six months.
59Your history of sexual abuse in your early adolescent years, coupled with the adversity of being fostered as a young child, are, in Ms Matthew’s view, significant factors associated with your current offending.
Sentencing considerations
60Mr Grant submitted that there a number of matters to be given weigh in mitigation of sentence.
61First is your otherwise good character. You have no prior or subsequent criminal history and the character evidence called on your behalf at trial attested to your good standing in the community, and your commitment to your family and the church community.
62It was submitted that Bugmy principles are enlivened. You experienced very poor circumstances in your early years resulting in your parents placing you with cousins as they could not afford to educate you. You experienced family violence and bullying and you were made to work as a child to cover your board. In your primary years you were the victim of sexual abuse from one of your teachers. Ms Matthews is of the view that these features of your childhood are factors which are associated with your offending.
63Mr Menon accepted that the broader or general application of Bugmy principles can be taken into account. While I accept that your difficult childhood is relevant, I must assess any reduction in moral culpability by reference to the serious nature of your offending.[12] As such in my view on the evidence your moral culpability and general deterrence can be reduced, but only to a limited degree.
[12] DPP v Sabatucci [2021] VSCA 340, [6].
64Mr Grant submitted that Verdins principle five has relevance as your mental condition now, at the time of sentencing, is compromised meaning that any sentence you receive will weigh more heavily on you than it would on a person not suffering your condition. Ms Matthews diagnosed you with Major Depressive Disorder and is of the opinion that your experience of prison will be ‘far more burdensome’ for you also referencing the fact that there is a possibility of you dying in prison. I accept that in the circumstances Verdins principle five can be given weight in the sentencing exercise.
65Delay is a relevant consideration. Charges were initiated in early 2020. The matter commenced in the Magistrates’ Court in relation to three of the victims and was to proceed as a contested hearing. The matter was adjourned to allow for additional charges to be laid in relation to Alice Marshall, requiring it to then proceed through the committal stream to this court. There were also a number of adjournments in this court for reasons not attributable to you. As a result of the substantial delay, you have lived with the stress of this matter for a considerable time. I take this delay into account.
66Turning to your age and physical health. You are 67 years of age. You suffer from type 2 diabetes, arteritis and sleep apnoea. You are currently being investigated for a lung disorder. Ms Matthews has given you a provisional diagnosis of Moderate Neurocognitive Disorder however she is also of the opinion that your deficits do not interfere with your capacity for independence in everyday activities within the custodial setting. Mr Grant did not submit that imprisonment will adversely affect your health, but rather when coupled with your age, your health issues may become more burdensome to manage over time.
67Specifically in relation to your age, Mr Grant relied on established principles: that you are less likely to pose a danger to the community, that you may be more likely to die in prison and thus any term of imprisonment represents a large portion of your remaining life; and that prison is generally likely to be more burdensome for you than a prisoner of younger years. I accept these general principles apply in your case and I take them into account.
68Turning to your prospects of rehabilitation. You come before the court with no prior or subsequent convictions. Ms Matthews assessed your current risk of further sexual offending to be low, however notes that your cognitive presentation will negatively impact your risk of sexual reoffending and, if that is the case, your risk of further sexual offending would be raised. Further, that your current cognitive state would impact negatively on your capacity to benefit from rehabilitation programs. It must also be noted that you continue to deny the offending and the harm caused to your nieces. As such you have not displayed any insight or remorse which self evidently, will be an obstacle to your rehabilitation. In the circumstances the objective factors suggest your prospects to be good however when considered with subjective considerations, in my view your prospects are guarded.
69General deterrence and denunciation of your conduct are in my view prominent sentencing considerations. You offended against your nieces who at the time were in your home and in your care. They looked to you for guidance, and you abused the trust instilled in you. Conduct such as yours must be deterred and a strong message must be conveyed that such conduct will result in harsh prison sentences. In the circumstances in my view specific deterrence and protection of the community must also carry some weight in the sentencing calculus.
70Pursuant to s 6F of the Sentencing Act 1991 (‘Sentencing Act’), you fall to be sentenced as a serious offender on Charges 1, 4, 7 and 8. As such, any sentence of imprisonment imposed on any two of those charges attract a presumption of cumulation in relation to sentences imposed on the remaining two charges pursuant s 6E, requiring the court to consider protection of the community as the principal sentencing purpose pursuant to s 6D. However, the prosecution does not seek a disproportionate sentence to achieve these ends, and the overarching principle of totality therefore continues to apply.
Sentence
71Mr Burns would you please stand.
72Jason Burns on Charges 1 and 8, indecent act with a child under 16, you are convicted and sentenced to 2 years imprisonment on each charge. On Charges 9 and 10, indecent assault you are convicted and sentenced to 18 months imprisonment on each charge. On Charge 4 sexual penetration of a child under 16, you are convicted and sentenced to 6 years imprisonment. On Charge 7, sexual penetration of a child under 16, you are convicted and sentenced to 5 years imprisonment. Charge 4 will be the base sentence.
73I direct that 6 months of the sentence imposed on Charges 1, 7, 8 and 9 be served cumulatively on each other and on Charge 4 making for a total effective sentence of 8 years imprisonment. I direct that you serve 5 years imprisonment before becoming eligible for parole.
74Pursuant to s 18 of the Sentencing Act, I declare that 109 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
75Pursuant to the Sex Offenders Registration Act 2004, as Charges 4 and 7 are both Class 1 offences, pursuant to s 34(1)(c), you will be subject to reporting conditions for the remainder of your life.
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