Director of Public Prosecutions v Burton

[2015] VCC 641

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00682

DIRECTOR OF PUBLIC PROSECUTIONS

v

EVAN BURTON (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2015
DATE OF SENTENCE:	11 May 2015
CASE MAY BE CITED AS:	DPP v Burton
MEDIUM NEUTRAL CITATION:	[2015] VCC 641

REASONS FOR SENTENCE
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Subject:   Sexual penetration under 16.  Persistent sexual abuse.  
           :  Five year community corrections order. Sex Offender's Registration for life   reporting.

APPEARANCES:	Counsel	Solicitors
For the Director	Ms S. Joosten
For the Accused	Ms O. Trumble

HIS HONOUR: 

1In these sentencing remarks I refer to you by a pseudonym Evan Burton.  That is done to protect not only your identity but most importantly the identity of your victims.

2You have pleaded guilty to three charges of sexual penetration of a child under the age of 16 years (Charges 1, 3 & 4), one charge of indecent act with a child under the age of 16 (Charge 2) and two charges of persistent sexual abuse of a child under the age of 16 years (Charges 5 & 6).  The offending occurred between April 2012 and October 2014.  Charges 3 is representative of one other occasion of sexual penetration included in the charge.  Charge 6 is constituted by six occasions of sexual penetration and Charge 7 by 12 occasions of sexual penetration.

3The maximum penalty for each of the offences of sexual penetration of a child under the age of 16 years and, indecent act with a child under the age of 16 years is relevantly ten years' imprisonment.  The maximum penalty for each of the offence of persistent sexual abuse of a child under the age of 16 years
25 years' imprisonment.

4You have also pleaded guilty to the summary offence of committing an indictable offence whilst on bail and you have agreed to have that summary offence dealt with by this court.  The indictable offence relied upon for this matter is Charge 6 on the indictment.  That is a between dates offence and the dates relied upon are between 9 May 2014 and 27 October 2014.  The maximum penalty for this summary offence is 30 penalty units or three months' imprisonment.

5The circumstances of your offending are outlined in a Prosecution Summary prepared by the learned prosecutor Mr Lewis.  That document was accepted by your counsel Ms Trumble as being accurate and as forming a proper basis upon which I can proceed to sentence you for these matters.

6It is not necessary that I here set out again what is there set out in detail, except in a summary way.  However, these sentencing remarks need necessarily be read with what is set out in the summary.

7The offending in Charges 1 & 2 occurred when you were aged 17 to 18 and your victim 14.  You and the victim met via mutual friends and communicated via Facebook.  The victim ran away from her home and went to stay with you.  You became intimate with the victim in a same sex relationship.  In all of the charges the acts relied upon by the prosecution are composite and encompass both the acts performed by you in the same sex relationship and the acts performed by the complainant.

8The offending in Charges 3 and 4 was of a similar kind.  The victim in these charges was aged 14 and you were aged 18.  On the night that you met your victim in this charge you were both at a party and you were informed she was 14 years of age.  You both kissed on that night and subsequently formed a friendship messaging via Facebook.  About two months after your friendship commenced you became intimate with each other.

9The occasions of sexual abuse relied upon in Charge 5 also rely on similar conduct.  In charge 5 there was a different victim.  She was aged 14 to 15 at the time of offending and you were aged 18 to 19.

10In Charge 6 the victim live at the same address as you with her mother who was then in a relationship with your father.  You commenced an intimate sexual relationship with her also.  Your victim in this charge was aged 15 and you were aged 19 to 20.

11Your offending is serious extending as it did over a period of more than two and a half years with four different victims.  In each case you were older than your victim and therefore more experienced in life generally.  However, from the summary of facts upon which I have been asked to sentence, it cannot be said that you wielded power over your victims to satisfy your sexual gratification.  Nor can it be said in my view that your behaviour was predatory.  These are in my view distinguishing features that put your offending towards the lower end of the scale for what are unquestionably very serious offences.

12The summary offence is important because it occurred after you had been interviewed and charged with offences in relation to what are here Charges 1 to 5.  That was on 14 May 2014 and you committed the offending in Charge 6 after you were bailed.

13When you were at first interviewed you admitted all of the allegations involving the victims in the offending in Charges 5 and 6, but you denied any relationship with the victims involved in Charges 1 to 4 and you later retracted what you had at first admitted about the victim in Charge 6. 

14There was a contested committal and but no victim was forced to give evidence against you and the matter resolved into a plea of guilty on 1 April 2015.  Only the mother of one of your victims was cross examined.

15I treat you for sentencing purposes as having pleaded guilty to the charges at an early stage.  By your pleas of guilty you have saved possibly four criminal trials.  By so doing you have saved not only the time and costs of these trials but you have importantly saved the need for your victims to be called as witnesses and to speak of the sexual acts that occurred between you. 
I regard your pleas of guilty as demonstrative of genuine remorse on your part for the crimes you have committed.

16Because you have pleaded guilty at an early time you are entitled to a reduction in sentence on that account and this is reflected in the sentence that I will shortly pass.

17I admitted into evidence a victim impact statement from the mother of your victim in Charges 1 & 2.  The effects that this kind of offending can have upon the victim and her family can there be seen.  In passing sentence I have taken this victim impact statement into account.

18Your counsel Ms Trumble provided to me before the commencement of the plea a helpful written outline of argument which I marked as an exhibit. 
Ms Trumble conceded that in sentencing for offending of this kind considerations of denunciation and deterrence, both general and specific, are very important. However, she submitted that there were a number of mitigating factors here that justify consideration of an overall disposition that allowed you to remain free in the community. She submitted that the imposition of a Community Corrections Order with conditions was an appropriate disposition. In this regard she relied upon the guideline judgment of the Court of Appeal in Boulton v R [2014] VSCA 342 and subsequent cases.

19Ms Trumble relied upon the facts that:

·You have no prior convictions and there is nothing pending;

·There are relevant mental Health issues to which I shall later refer;

·You are aged 20 and a young offender and some of this offending occurred when you were at law a child yourself;

·You have yourself made effort at addressing ongoing psychological issues;

·Your risk of re-offending is low provided you have adequate supports in place and continue to access treatment;

·There is an absence of aggravating features in the offending making your moral culpability low.

20I admitted into evidence a number of medical reports and psychological reports in relation to you.  There are too many for all of them to be mentioned here but I have taken them all into account.  Mr Mathew Staios provided a psychological assessment dated 26 April 2015 and he was called to give evidence.

21In his report he provides some factual background.  You are one of ten children including three brothers, two half-brothers and, four half-sisters. 

22Your parents divorced more than 13 years ago due to on-going issues with domestic violence with your father physically and verbally abusing your mother.  Your father was a drug addict and three of your brothers are currently battling drug addiction.  You have a good relationship with your mother with whom you continue to reside.  Because of the violent atmosphere in the home you grew up with persistent feelings of fear.  I was told and accept that police, Department of Human Services and the CATT team were regular attendees at your home.

23You have the ongoing support of your mother who has her own health problems and who is wheel chair bound and, two half-brothers and, your current partner with whom you have been in a stable relationship for some six months.

24You were apparently an average student.  You left school after Year 11 and attempted to return two years later but a motor vehicle accident where you were the driver and in which you were injured intervened.  You have had some part time work in the past but you are presently in receipt of a disability support pension.  You are actively looking for work whilst undertaking training in civil construction.

25In July 2013 you had a motor vehicle accident which left you with a fractured right femur and tibia for which you have undergone several operations.  You also suffered a head injury which has caused you cognitive difficulties.  You suffer from ongoing constant pain and walk with an obvious limp.  As a result of this accident you were charged with offences and you are undergoing a Community Corrections Order consequent on these unrelated subsequent matters.

26You have for some time been in receipt of psychological counselling from
Ms Naech for what she has diagnosed as severe mood disorder with anxious symptomology which has been exacerbated by the motor vehicle accident.  The severe mood disorder with anxious symptomology has been caused by the atmosphere of violence in the home in which you have grown up.

27When interviewed by Mr Staios you acknowledged your role in the offending and made no attempt to dismiss the seriousness of your actions.  This is important I think because you now have full insight that what you did was wrong.  You told Mr Staios that when you offended you were not aware of the legality surrounding sexual acts and age of consent and you believed that the laws did not take same sex relationships into consideration.  You expressed remorse for your offending but in respect of two of the victims you said you thought you were in a semi long term meaningful relationship with the victims.  That does not in any way excuse your offending but I accept that is what you thought.  I accept you did not in any way groom your victims.  I accept you offended because of your background which meant you were in desperate need to be in a meaningful and secure relationship.

28Mr Staios carried out various tests designed to measure your risk of
re-offending which he assessed as low.  I accept that opinion.

29He thought you suffer from Major Depressive Disorder with Anxious Distress and a Borderline Personality Disorder.  He thought that if incarcerated in prison you would be at significant risk of decline in your mental health. 
I accept that opinion.  These findings influence the kind of sentencing disposition here.

30I turn to some principles to be applied by sentencing courts when dealing with crimes of this kind.

31General Deterrence:  Appellate courts in all jurisdictions in this country have repeatedly said that crimes against children and young persons are to be regarded as abhorrent and, that the courts have a duty to the victims and to the community generally to protect such persons from people such as yourself who might be minded to take advantage of them for personal sexual gratification.   Experience of the courts has shown that where such offences are committed the effects upon the victim can be both profound and lasting. 

32Accordingly, any sentence I impose on you must send a clear message to those in the community who might be of the inclination to offend against children as you have, that if they do so and, they are detected, the punishment from the court will be condign.  In cases such as this, application of the principle of general deterrence is a very important factor in sentencing. 

33Specific deterrence must also remain an important objective in sentencing you. 

34Rehabilitation:  I think your prospects for full rehabilitation are good and the community has an interest in ensuring that occurs.  You are a young offender and rehabilitation is a very important consideration in imposing sentence upon you.  Given proper support and assistance by way of ongoing psychological treatment and counselling I doubt you will offend again in this way. 

35The sentence imposed must appropriately denounce your conduct and must reflect just punishment..

36In sentencing you I must have regard to application of Part 2A of that Act.  Because I will not sentence you to a term of imprisonment on any of the charges, you will not be sentenced as a serious sexual offender and other provisions in that Part of the legislation will not apply here. 

37Mr Lewis acknowledged that there were a number of mitigatory factors at work here.  But he submitted the offending was very serious warranting an immediate term of imprisonment.  Anything less he submitted would be manifestly inadequate.  I reject that submission in favour of a disposition for a young offender that favours your rehabilitation.  You will be convicted on each charge (including the summary charge) and placed on a Community Corrections Order for a period of five years with the following conditions.

38Two hundred hours unpaid community work s. 48C

39Section 48D Treatment and Rehabilitation

40Section 48D(3)(e) Mental Health Treatment

41Section 48D (3)(f) Offending Behaviour programs – SOATS

42Section 48E Supervision

43Pursuant to the application of ss. 6 and 34 of the Sex Offenders Registration Act 2004 you are a registerable offender within the meaning of that Act with reporting obligations for life. 

44I strongly advise you to take advice as to your obligations under the Sex Offenders Registration Act.  You will have to comply with the reporting obligations for the remainder of your life.   

45The prosecution seeks the making of a forensic sample order under s.464ZF of the Crimes Act.  The application was not opposed and I have made the order for the reasons stated in it.  Having made the order a member of the police force may use reasonable force to take a sample from your body, in this case a swab from your mouth.

46Now, Ms Scicluna, do you understand that there are a number of conditions of this community corrections order which you must comply with?

47OFFENDER:  Yes, Your Honour.

48HIS HONOUR:  If you do not comply with them, you can be brought back before me and dealt with?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  Now, I mentioned in my sentencing remarks that you should take some advice if you are unsure about the requirements of the Sex Offenders Registration Act.

51OFFENDER:  Yes, Your Honour.

52HIS HONOUR:  That will affect you for the rest of your life.

53OFFENDER:  Yes, Your Honour.

54HIS HONOUR:  You need to understand that if you do not comply with that Act, you can commit and offence.

55OFFENDER:  Yes, Your Honour.

56HIS HONOUR:  If it happens in the first five years, that itself can trigger a breach of the community corrections order, do you understand that?

57OFFENDER:  Yes, Your Honour.

58HIS HONOUR:  So it is very important, I think, that you speak to Ms Trumble or someone like Ms Trumble to get some proper advice about those matters, do you understand?

59OFFENDER:  Yes, Your Honour.

60HIS HONOUR:  Very well.  Could you have Ms Scicluna sign that please.  Just come out of the dock, if you would, please Ms Scicluna.

61Very well, Ms Scicluna, you are free to leave, thank you.

62OFFENDER:  Thank you, Your Honour.

63HIS HONOUR:  Thank you Ms Trumble.

64MS TRUMBLE:  Thank you, Your Honour.

65HIS HONOUR:  Thank you.

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