Director of Public Prosecutions v Burton

[2023] VCC 1551

7

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-00250

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEEGAN MICHAEL BURTON

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2023
DATE OF SENTENCE:	31 August 2023
CASE MAY BE CITED AS:	DPP v BURTON
MEDIUM NEUTRAL CITATION:	[2023] VCC 1551

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Grooming for sexual conduct of a child under 16; abduction of a child under the age of 16 for a sexual purpose; sexual assault of a child under 16; deportation

Legislation Cited:      Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:Worboyes [2021] VSCA 169, Akot v The Queen [2020] VSCA 55

Sentence:                  4 years 7 months imprisonment, NPP 2 years 10 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. T. Stokes	A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr J. Portelli	James Dowsley and Associates

HER HONOUR:

1Keegan Burton, you have pleaded guilty to one charge of grooming for sexual conduct of a child under the age of 16, one charge of abduction or detention of a child under the age of 16 for a sexual purpose, and one rolled up charge of sexual assault of a child under the age of 16 encompassing five instances.  The maximum penalty for each of these offences is 10 years' imprisonment.  There is a standard sentence of four years for the charge of sexual assault of a child under the age of 16. 

2You also pleaded guilty to three summary charges of contravening a conduct condition of bail, for which the maximum penalty is 30 penalty units or three months' imprisonment in each case.

3You come before the court of prior good character and have no previous convictions.

Circumstances of the offending

4The circumstances of your offending were fully outlined in Exhibit A, the summary of prosecution opening, dated 5 May 2023.  I will summarise those facts here.

5The complainant was a 12 year old girl who lived with her family and was completing year 7 at school.

6You were 27 years of age and living in the Narre Warren area.

7Both you and the complainant had active Snapchat accounts.

8On 11 March 2022 you sent a friend request to the complainant, who was previously unknown to you.  She accepted and you became Snapchat friends.  Your first communication with her contained a photograph the complainant had posted and you began to converse.

9Between 9.13am on 18 October 2022 and 8.32pm on 22 October 2022 you sent the complainant 342 messages.  She told you she was 12 years old but you were not deterred.

10You sent explicit videos and photographs to your victim, including multiple photos of an erect penis, together with videos and still photographs of a woman performing oral sex on an erect penis.  You also sent an image of yourself in a bathroom at your father's house and revealed your true name when asked.

11Messages sent by you included the following:

·'Are you sure you're ready to have sex'

·'Cause I am going to be rough'

·'And if you're a virgin it's going to hurt'

·'Full naked and lights off'

·'Cause I will be cumming your ass not pussy [sic]'

·'Don't want to get you pregnant'

·'I already have 3 kids and I don't want more babe'

·'And your only 13 [sic]'

·'If you can get out during the day around 1 sweet but if you can't sneak out later that night and we can have a quick fuck'

12You arranged to meet the complainant at a reserve in Ferntree Gully on 22 October 2022.  She told her mother she was going to a park and had her phone.  You picked her up in your silver Holden Commodore and drove her to your home address where you took her straight into the bedroom. 

13The complainant sat down on the bed and you stood in front of her, removing your pants to expose your erect penis.  You told her to 'touch it, come on, just touch it'.  She touched your penis with her left hand and then her right, masturbating you for some 30 seconds.  You told her she could 'squeeze a bit harder'. 

14You then touched the complainant on the breasts over her clothing.  You removed her right breast from her bra and shirt, kissed and licked her right breast for 20 seconds and then kissed her on the mouth, inserting your tongue into her mouth for approximately five seconds. 

15You unsuccessfully tried to prise apart the complainant's legs.  You offered to perform oral sex on her and touched her upper right inner thigh over her pants.  You directed her to try one more time and she again masturbated your penis. 

16The complainant then told you she did not want to do it and wanted to go home. 

17You returned to your car with your victim and drove her back to the reserve from which you had picked her up.   During the drive she took screen shots of her location on a map application on her phone and recorded a video of you driving.

18After leaving your car, the complainant contacted her brother via Facetime and disclosed that she had been picked up and taken to a house.  She caught a bus home and then disclosed to her sister the nature of the offending. 

19Your victim called her brother again and while describing the offending, her father overheard the call.  She then disclosed the offending to her father and following that call, to her older sister and then her mother.  The matter was then reported to police. 

20You were released on bail but later found to have breached that bail by being in possession of two mobile phones, failing to report possession of those phones to police and using the internet to access social media platforms.  This constitutes the three related summary matters.

Record of interview

21When interviewed by police on 28 October 2022 you admitted using Snapchat and provided investigators with your mobile phone number and your username.  You conceded the photograph sent to the complainant was of you but said you could not remember where it was taken.

22You denied knowing your victim or having met her, denied knowledge of her Snapchat username, denied attending the reserve and picking her up and denied any sexual activity with her.

Gravity of the offending

23The offences to which you have pleaded guilty are all serious, aggravated by the fact that your victim had informed you that she was 12 years of age.  Ms Stokes, for the prosecution, submitted that your offending falls in the low to mid-range.  I disagree.  While the kidnapping is a lower end example of the offence, overall this is clearly mid-range offending, involving persistent and escalating grooming of your vulnerable young victim, taking her to your home, and committing sexual offences upon her.

Victim Impact Statements

24I have received and considered the victim impact statement of the complainant and had read aloud in court the statement of her mother.  Both bespeak the ongoing effect of your offending.

25The complainant's mother describes her devastation and ongoing worry for her daughter, together with the impact on her own mental and physical health.  The impact of your offending is clearly lasting and has resulted in ongoing distress to the complainant and those close to her.

Moral culpability

26Despite your denials to Dr Gee, whose report I will return to shortly, I find you well knew what you were doing.  The text messages show that your victim told you her age, told you she was at school and that she sent you photographs of herself.  Nevertheless, you persisted in propositioning her, arranging a meeting and then taking her from the park. You referenced her being 13 in a text message.  I find your moral culpability to be high. 

Plea of guilty

27The parties agree that your plea of guilty was entered at the earliest opportunity.  This has significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence.  In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.

28The utilitarian benefit of your plea is enhanced by the fact that the Worboyes [2021] VSCA 169  considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.

Remorse

29By your plea of guilty, you have demonstrated an acceptance of responsibility for your offending.  When asked whether anything was wrong with your conduct, you stated to Dr Gee 'what's wrong, a lot.  The fact that she was underage, groomed her, picked her up, attempt of sexual assault'. 

30While I accept you have demonstrated some remorse and you demonstrate some understanding of the wrongfulness of your actions, you present as having limited insight into your offending and the impact on your victim and those around her.

Personal circumstances

31I turn now to your personal circumstances.

32You were born in February 1995 in New Zealand and you are now 28 years old.  You moved to Australia with your family aged 13 years.  When your parents separated some years later, your mother returned to New Zealand with your two younger brothers.  You remained in Australia with your father.

33You completed years 9 and 10 in Australia.  You left school and after a period of approximately two years you obtained work in traffic control.  Two years later you began factory work for a period of three years before becoming a dairy farmer for four years.  You were unemployed for the 12 months prior to your offending. 

34You have a partner, Jasmine, and have three young children now aged 5, 3 and 2.  You hope to repair the relationship with you partner upon your eventual release.

35You have had a problem with alcohol but not with illicit drugs.

36While in custody you have been employed as a billet.  To your credit, you have also engaged in several courses and counselling while on remand.

37I received a psychological report from Dr Dion Gee dated 2 May 2023.  He found you do not currently fulfill diagnostic criteria for Paedophilic Disorder, however your conduct does share some features consistent with 'other paraphilic disorder involving non-consenting individuals'.

38You expressed to him past suicidality around the time of your arrest but were found not to be at imminent risk.  You were found to display generalised anxiety and major depression.

39While you stated to Dr Gee that you had let down your family, your partner and 'apparently' the victim who would suffer mentally, with anxiety and depression as a result of being forced to do something she did not want to do, he opines that you have reduced insight into your offending.  You further have limited insight into your therapeutic needs and require intervention of moderate intensity to address this.

40You displayed a difficulty understanding the implications of your offending, particularly the long term effects, and denied to Dr Gee that you knew how old your victim was at the time.  Having read the text messages, the latter assertion is clearly untrue.

Deportation

41It is likely that you will be deported to New Zealand upon your ultimate release from custody.  It was recognised by the Victorian Court of Appeal in Akot v The Queen [2020] VSCA 55 that:

'The potential for an offender to be deported at the completion of a sentence is relevant to the sentence in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. Secondly, the deportation, should it occur, would constitute an additional punishment, because it destroys the opportunity for the offender to settle permanently in this country.'

42You have been in Australia since the age of 13, you have three children who were born and reside here and you have made your life here.  While you and your partner had reportedly discussed returning to New Zealand before your offending, I accept that the prospect of deportation will weigh heavily upon you whilst you serve your sentence, particularly as it may involve a separation from your children.

Sentencing principles and factors

43Mr. Burton, your behaviour was predatory and in addition to the impact on your victim, presents a nightmare scenario for parents who believe they know where their children are and provide them with a mobile phone for their safety. 

44Your bombarding of your victim with almost 350 sexualised messages, explicit photographs and videos over five days demonstrates your building rapport and becoming more suggestive.  Ultimately your victim was persuaded to meet you.

45While you did return her to the park from which you picked her up, you took her away to your home and sexually assaulted her.  It must have been a confusing and terrifying experience for such a young person.

46Your counsel concedes a term of imprisonment is warranted.  This was, as he said, unsophisticated offending. 

47Totality must play a part in the sentencing exercise as the three offences are so closely related.  This will be reflected in the sentence I impose.

48You have been assessed as being a moderate risk of future sexual violence in the community according to the RSVP-V2 assessment scale.  A STATIC-99 assessment placed you at above average risk for being charged or convicted of another sexual offence.  While this is of concern, should you participate in programs to reduce reoffending whilst in custody, I am of the view that your prospects of rehabilitation are reasonable. 

49You maintain family support and you are capable of employment, which you have had in the past.

50Dr Gee opines that your impaired mental functioning would likely see imprisonment weighing somewhat more heavily on you than on a person in normal health.  I accept this, although I note that you expressed to Dr Gee that you are coping reasonably well in custody and feel you are 'getting used to it'.

51I note that Charge 3, sexual assault of a child under 16 is a standard sentence offence with a standard sentence of four years.  The standard sentence for an offence is a sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness.  I must take the standard sentence into account as one of the factors relevant to sentencing.  This requirement is to be treated as a legislative guidepost having the same function as the maximum penalty.  It does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing.

52The Court must only have regard to sentences imposed in cases where the standard sentence regime applies, and I can indicate that while neither party provided me with relevant case law, I have had regard to such cases, although each case ultimately turns on its own particular facts and circumstances. 

53I have taken the standard sentence for sexual assault of a child under 16 into account as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case.  I note Charge 3 on the indictment is also a rolled up charge, encompassing five acts.  The sentence I have imposed on this charge is slightly lower than the standard sentence.

54The principles of general and specific deterrence are both relevant in the circumstances.  Grooming and sexual assault are all too common and potential offenders need to be deterred.  While you have no prior convictions, your risk assessment leads me to conclude that specific deterrence remains a live issue.

55Just punishment and denunciation are also relevant considerations, as is community protection.  Your risk assessment returned a finding that any future offending is likely to involve pubescent girls you meet via social media and the sentence I impose must serve to protect the community from you on release.

Orders

56I make both the forfeiture and disposal orders as sought by the prosecution. 

Sex Offenders Registration Act

57You have committed three class 2 offences, however Charges 2 and 3 occurred within a 24 hour period so are considered to be the same incident pursuant to s5 of the Sex Offenders Registration Act 2004.

58Having therefore committed two class 2 offences, you are to be placed on the Register for a period of 15 years pursuant to s.34(1)(b)(ii) of the Act.  Mr Burton, would you stand please?

Disposition

59On Charge 1 you are sentenced to 3 years' imprisonment. 

60On Charge 2 you are sentenced to 2 years 3 months' imprisonment.

61On Charge 3 you are sentenced to 3 years 10 months' imprisonment. This will be the base sentence.

62On the three related summary charges you are sentenced to seven days on each charge.

63I order that 6 months of the sentence imposed on Charge 1 and 3 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 3 and on each other.

64That makes a total effective sentence of 4 years and 7 months' imprisonment. 

65I order that you serve a non-parole period of 2 years and 10 months' imprisonment.

66I declare 150 days served by way of pre-sentence detention pursuant to s18 of the Sentencing Act 1991.

67Pursuant to s6AAA of the Sentencing Act 1991, I direct that had you not pleaded guilty, I would have imposed a total effective sentence of 6 years and 3 months' imprisonment with a minimum of 4 years 2 months to serve before being eligible for parole.  You can be seated, Mr Burton.  Would you now please sign the Sex Offenders Registration acknowledgment and I will have that provided?  Is there anything else from either party?

68MS STOKES:  No, Your Honour.

69MS O'MALLEY:  No, Your Honour.

70HER HONOUR:  Could Mr Burton be removed please?  Adjourn the court please.

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