Director of Public Prosecutions v Burton (a pseudonym)

[2019] VCC 1537

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIONEL BURTON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Warrnambool
DATE OF HEARING:	16 September 2019
DATE OF SENTENCE:	20 September 2019
CASE MAY BE CITED AS:	DPP v Burton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1537

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Indecent assault; Gross indecency with a girl under the age of 16; Historical offending committed between 1964 – 1965; Three victims are nieces of the offender; Plea entered at early stage of proceedings; Offender of advanced age with precarious physical health and ongoing deterioration in cognitive capacity; Wholly suspended sentence imposed.

Legislation Cited:                   Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic); Crimes Act 1958 (Vic).

Cases Cited:RLP v The Queen [2009] VSC 271; Bromley v the Queen [2018] VSCA 329; Stalio v The Queen (2012) 46 VR 426; Carter v The Queen [2018] VSCA 88.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. McConaghy	Office of Public Prosecutions
For the Accused	Mr P. Howman	HBH Legal

HIS HONOUR:

1Lionel Burton[1], you have pleaded guilty to three charges of indecent assault and two charges of gross indecency with a girl under 16 years of age.  Each of these offences occurred between 1 September 1964 and 31 December 1965, and involve three victims, all of whom were your nieces.

[1] A pseudonym.

2You are now 86 years of age, having been born in April 1933. You were between 31 and 32 years of age at the time of the offending.

Summary of offending

3The background to your offending can be summarised as follows.  In about 1962 or 1963, the parents of your victims built a house in Otway Street, Portland.  They and their four daughters moved into those premises shortly afterwards.  Sadly, the complainant's mother died in August 1964.  The father was an earthmoving contractor and was often away during the week due to his work commitments.  You, your wife and two children moved into the Otway Street house, and while the father was away, you and your wife were responsible for looking after the three complainants and their younger sister.

4The prosecutor, Mr McConaghy, in his summary of these matters, stated that all of the victims were scared of you because you had a bad temper and would tend to yell at family members.  They always tried to be on their best behaviour when you were around and to do as you required.

5The first victim, who I shall refer to for the purposes of these sentencing remarks as Pamela Brown[2], was born in October 1953, and was aged between 10 and 12 when you abused her.  She is now 65.  

[2] A pseudonym.

6On one occasion between September 1964 and December 1965, you were alone with her in the Otway Street house.  You lay on top of her on the kitchen floor and put your hands in her pants as she struggled against you.  You put your hand on her vagina and rubbed your hand up and down, causing her some pain.  Pamela managed to get away and ran to the outside toilet, where she locked herself inside.  That conduct constitutes charge 1, indecent assault.

7You went out and spoke to her through the locked toilet door.  You told her that if she came out, you would help her dig her garden.  Pamela felt safe enough to come out because a friend of her father's was also outside.  You then helped her dig in the garden.

8On another occasion during the same timeframe, you went horse riding with Pamela at the grandparent's farm.  You sat behind her on the horse, and as you rode along, you put your hand down into her pants and digitally penetrated her vagina.  This caused her pain, but she was too scared to say anything.  That conduct constitutes charge 2, indecent assault.

9In her account to police, Pamela also described a further occasion at that farm when you walked with her to a creek behind a shearing shed.  At that time, you approached her and tried to grab hold of her, but she ran away.  That conduct is not the subject of any charge and is relevant only as background evidence, which assists in more realistically evaluating your charged conduct.

10Pamela told your wife that you had been rude to her, but nothing came of that complaint.  She also told her grandmother that you had been sexually abusing her, but she was told not to say or do anything that would hurt your wife.

11During the Christmas break between the years 2000 and 2001, Pamela confronted you about your sexual abuse of her whilst she was visiting the grandparent's farm.  She was with her aunt at the time.  You denied abusing her.

12The second victim in this matter, who I shall refer to as Linda Brown[3], was born in March 1958 and was aged between six and seven the time of the offending.  She is now 61.  

[3] A pseudonym.

13On another occasion during the same timeframe, Linda was sitting on a couch or a chair with you in the lounge room of the Otway Street house.  At the time, it was dark and there were other people in the lounge room.  You put your hand under her clothing and onto her vagina.  Your hand remained there for some time, you also rubbed the outside of her vagina.  Linda felt sore afterwards and stated that she was shocked when this happened and did not understand what you were doing.  That conduct constitutes charge 3, indecent assault.

14After this incident, you gave Linda a coin and told her not to tell anyone about what you had done because it was your secret.  In response, Linda went to the bathroom, threw the coin down the toilet and then wiped her vagina.

15On another occasion during the same timeframe, you asked Linda to bring a newspaper into the bathroom, where you were cleaning the shower.  Instead, Linda’s elder sister, who I shall call Karen Brown[4], delivered the newspaper to you.  You became angry and demanded that Linda come into the bathroom.  When she did so, you were sitting on the edge of the bath with your penis exposed.  You called her over to you and asked her to touch and play with your penis.  She refused but you persisted, saying, 'Come on, come on'.  She continued to refuse and left the bathroom.  That conduct constitutes charge 4, gross indecency with a girl under the age of 16.

[4] A pseudonym.

16Sometime afterwards, Linda told her younger sister, who I shall refer to as Jane Brown[5], about you touching her.  In 2012, she also told a friend what you had done and said to her in the bathroom.

[5] A pseudonym.

17The third victim of your offending, Karen Brown, was born in May 1955 and was aged between nine and 10 years at the time of the offending.  She is now 64.

18One evening during that same time period, between 1 September 1964 and 31 December 1965, your wife left the Otway Street house to pick up Pamela from the train station.  Karen went to the toilet, and when she walked out, she was confronted by you standing outside the toilet with your erect penis exposed and asking her to touch it.  At that moment, your wife could be heard arriving home in the car, and you told Karen to go to bed.  That conduct constituted charge 5, gross indecency with a girl under the age of 16.

19This offending was brought to light in September 2016 by Pamela Brown, who reported her abuse to the police.  In October 2016, police contacted Linda Brown and she disclosed that she had been sexually abused by you.  In November 2016, police spoke to Karen Brown who also disclosed her abuse.

20On 26 September 2016, Pamela Brown telephoned you.  That phone call was electronically recorded.  During the call, you admitted that you remembered sexually abusing her.  You stated that you knew it was wrong, that you should not have done it, that you regretted having abused her and that you were very sorry.  You said you could not remember sexually penetrating her vagina with your fingers.  When asked if you had sexually abused Linda, you responded, 'Maybe, yes'.  Towards the end of the call, you said to her that you hope she accepted your apology, and she said she did.

21On 23 February 2017, you were arrested and interviewed by police.  In contrast with what you had told Pamela Brown, you denied offending against her and said, 'It's all bullshit, I'm denying it all'.  You further denied offending against Linda Brown.  Counsel indicated during the course of the plea, however, that some of your answers were internally contradictory and confusing.  For example, although you said that you were 'denying the lot', you also said you were sorry for abusing Pamela.

22Accordingly, it appears that you did make some admissions to the police in that interview, although your stance was somewhat confused. 

Victim impact

23Four victim impact statements were tendered on the plea, chronicling the enduring devastation caused by your offending.

24Pamela Brown described the abuse as having affected all facets of her life in ways that have been ‘far-reaching and at times terrifying’. Your abuse has inhibited and blighted her personal and work relationships with men, and left her lacking in self-worth and trust in others.  She has suffered in this way for over 45 years and expects to continue to do so.  She spent years in therapy struggling to overcome the effects of what you did to her.

25I note that the prosecutor indicated that, in assessing Pamela’s victim impact statement, I should take into account that unfortunately she was also the victim of abuse from two other family members.

26Linda Brown was extremely young when you offended against her and to this day, she finds it very difficult to understand how you could have done so in the aftermath of the sudden death of her mother.  Before she came forward and disclosed this abuse, she had carried the secret of it with her for the last 51 years.  She had struggled to understand what you did for all of those years.  She stated, ‘Throughout my life there have been constant triggers to reignite the memories but I have always managed to push them away’. That was, until she was contacted by police about this matter three years ago.  Since that time, she has had to deal with the legacy of guilt, shame, embarrassment and fear that you instilled in her when you abused her.  She still struggles to manage the trauma, flashbacks, sleepless nights and heightened anxiety this has caused her.

27Karen Brown has similarly been affected.  Throughout her life she has been hypervigilant of other males, particularly around her children and grandchildren.  She quite rightly laments the loss of innocence and trust that your actions caused her.  Like her sisters, her personal relationships have been strained by the effects of this abuse and she has needed to regularly seek counselling.

28Jane Brown also provided a victim impact statement.  She was only three years old when her mother died, and you went on to abuse her sisters.  They confided in her about their abuse and that caused her severe anxiety, for which she also sought counselling.  Her experience in caring for her elder sister Pamela Brown when she made attempts on her life, brought home the reality of what your sexual assaults had done to her family.

Procedural history

29Turning to the procedural history in relation to this matter, you were charged with these offences on 2 November 2018.  I note that it is regrettable that there was such a significant delay between your police interview in February 2017 and the laying of charges in November 2018. 

30On 8 February 2019, the matter was listed for a contested committal hearing to commence on 13 August 2019.  On that day, the matter resolved without any witness having to give evidence and you indicated that you would plead guilty to all charges on the Indictment.

31Having regard to counsel's explanation regarding the progress of negotiations in this matter, I will proceed on the basis that whilst your plea of guilty was not entered at the earliest possible opportunity, I will treat it as having been entered at what is, practically speaking, an early stage of the proceedings.

Personal history

32Turning to your personal history, you are now 86 years of age and you were between the ages of 31 and 32 when you committed these offences. Of particular significance is the fact that you remain living with your wife of 61 years.  There were three children of the marriage, you also have seven grandchildren and six great-grandchildren.

33You attended primary school in Portland, and even at that stage struggled academically.  You only completed Grade 5 and, unfortunately, you cannot read or write adequately.  In 1946, when you were 13 years of age, you were forced to leave school and commenced working because your father sustained a serious workplace injury and you had to help support the family.  You worked at the local meat works and a local sawmill until you joined the army at the age of 19 in 1952.

34During your six years in the army, you served in Korea immediately after the ceasefire and remained in the service until March 1958.  Shortly after leaving, you married and worked as a bus driver in Melbourne for a period of 12 months or so before returning to Portland to start a family.  There you worked driving trucks and also did seasonal work at the meat works. On one occasion at the meat works you injured your hand, such that your right little finger had to be amputated.  

35In 1969, you began work as a loader/driver for Cresco Fertiliser, and you continued in that role for 18 and a half years.  In 1987, you changed employment and commenced work with Prince Engineering, where you remained for nine and a half years, until your retirement at the age of 63 in 1996.  Since your retirement, you have travelled around Australia and kept active through bowls.

36As I indicated earlier, your wife's sister died in August 1964.  You and your wife and your two children of that time agreed to move into the Otway Street house in Portland to assist in the care of the four young children who had been left without their mother.  After 18 months, you moved from that address with your children.

37You have no relevant criminal history.

38Two personal references were provided, one from James Doogue[6], the other from Raelene Jacobson[7], confirming your otherwise good character and readiness to assist others.

[6] A pseudonym.

[7] A pseudonym.

39With respect to your physical health, your primary treating general practitioner, Dr Stephanson, provided a report of 21 August 2019, which describes you as a complex patient with multiple significant current and past illnesses.  They were listed as follows:

·hypertension, diagnosed in 2009, for which you take regular medication;

·hypercholesterolaemia, managed using daily medication;

·bilateral visual impairment, improved with cataract surgery, but with some residual deficits;

·type II diabetes, managed on a combination of oral medications and injectable insulin;

·extensive vasculopathy, involving multiple previous lower limb arterial operations for peripheral vascular disease, for which you remained symptomatic, abdominal vascular surgery for mesenteric ischemia in 2016, a previous stroke in 1992, and a left carotid occlusion confirmed in 2018;

·stage 4 chronic kidney disease, for which you consult regularly with a renal physician and which is likely to progress to stage 5 over the next two to three years, at which time dialysis is likely to be offered; and

·degenerative spinal disease with bilateral lower limb sensorimotor deficits, for which you are currently awaiting neurosurgery review.

40Dr Stephanson provided a supplementary report, dated 3 September 2019, opining that your life expectancy was likely to be less than five years, and that assumed optimal assessment and treatment.

41As to your psychological health, you were assessed by Ms Pamela Matthews, forensic psychologist, on 30 August 2019.  Your wife was also present at that assessment.

42In her report of 15 September 2019, Ms Matthews noted that you often lost track of your answers to her questions and experienced difficulties with word finding and in ordering a chronology.  During the assessment, your wife would intervene to remind you or provide information.

43Ms Matthews noted that overall, you presented as cognitively impaired.  You struggled to remember the charged behaviour in the interview and you appeared to have poor insight into your cognitive limitations, although you were aware that you were not physically or emotionally coping.  With respect to her diagnosis and opinion, Ms Matthews stated as follows:

Mr Burton’s cognitive profile indicates Mr Burton scores on Memory, Executive Functioning and Language fell more than two standard definitions below the mean suggesting degradations in these areas.  His executive functioning was evidently most problematic, suggesting deterioration in the prefrontal cortex.  His cognitive presentation indicates a Mild Neurocognitive Disorder (NCD), with Frontotemporal characteristics as defined by the DMS-V. 

The core features of mild NCD include a gradual onset and gradual progression of cognitive symptoms.  Further, the typical presentation is amnestic, with impairments on learning and memory.  At the mild NCD phase, such impairments are generally accompanied by deficits in executive functioning, indicating impairments to the frontotemporal regions of the brain; as evident by Mr Burton’s poor performance on tests requiring executive functioning. 

Disturbances to language, to word finding, naming and word comprehension were also evident in Mr Burton’s presentation, in that he was often only able to contextually use a word rather than conceptually explain or utilise a word, and his responses to questions were often circumstantial, and disorganised.  He was heavily reliant on his wife to prompt his memory and to assist with his chronology.  This aspect of his presentation also suggests a frontotemporal aspect of his cognitive  presentation. 

In the case of Neurocognitive Disorders social cognition such as routine self-care activities: cooking, cleaning, personal care, bill paying and so on; and procedural memory such as dancing and playing musical instruments; are preserved for extended periods, only becoming impaired in the later course of the disorder.  Hence family members tend not to notice cognitive deterioration in ageing family members for quite some time.  Up to 60% of patients with Chronic Kidney Disease suffer from associated cognitive  impairment.  It is the writer's view that as Mr Burton’s kidney disease progresses, his level of cognitive impairment is also likely to progress, by Stage 5, rapid progression of cognitive deterioration is likely.

44Ms Matthews also formed the view that you met the diagnostic criteria for a major depressive disorder and that your risk of reoffending was low.  Finally, she noted that whilst she had not been asked to assess fitness, it was her view that you would 'currently cognitively struggle with the trial process'.

45Your wife's general practitioner, Dr Patel, also provided a report in which he stated that, 'I agree that the impact of the sentencing would be (sic) have immense effect on this lady's mental wellbeing'.

Defence submissions

46Mr Newton, who in a very helpful plea on your behalf, submitted that your plea of guilty, given the circumstances in which it was made, should afford a transparently substantial sentencing discount.  In addition, he particularly relied on your advanced age and very poor physical and mental health, which is likely to deteriorate quite rapidly, as important considerations.  

47In this respect, he referred to the sentencing principles, that given your health condition will make imprisonment weigh more heavily on you than it would a prisoner in normal health, and that there is a serious risk of imprisonment having a significant adverse effect on your mental health, those matters will tend to mitigate punishment.  He also relied on the principle derived from the decision in RLP v The Queen[8], that in dealing with very old offenders suffering significant ill health, it may be necessary to moderate general deterrence.

[8] [2009] VSC 271.

48It was further submitted that imprisoning you would also cause extreme hardship to your wife and given your interdependent relationship with your 80-year-old wife, your circumstances were sufficiently exceptional to justify that consideration mitigating penalty.

49Mr Newton submitted that in ordinary circumstances, given the age of this offending, a Community Correction Order (‘CCO’) would be within the range of sentences reasonably open.  However, he submitted, noting Ms Matthews' opinion that your capacity to engage in that kind of order was lacking, he therefore contended that it was appropriate to impose a term of imprisonment which was wholly suspended.

Prosecution submissions

50Mr McConaghy, on behalf of the prosecution, submitted that there are a number of features of this offending which marked its seriousness.  It involved both penetrative and non-penetrative sexual assaults. It involved three complainants.  The offending spanned a 15-month period in circumstances where you were acting in the position of a parent, in the children's home and where the children were at a very vulnerable time in their lives because their mother had recently died.

51He submitted that the victim impact statements underscored the far-reaching effects of your abuse, persisting as they have for over 50 years.  Accordingly, a term of imprisonment should be imposed, although he noted that due to the age of this matter, the court had the power to wholly or partly suspend any term of imprisonment imposed.

Consideration

52In taking these submissions into account, it is important to point out that the applicable maximum penalties for these offences from 1964 and 1965 are vastly different to the penalties that would apply if the offences were to have been committed recently.  In the case of charges 1 to 3, the maximum penalty is three years’ imprisonment, and in the case of charges 4 and 5, the maximum penalty is two years' imprisonment.

53In addition, I am obliged to take into account sentencing practices at the time these offences were committed, to the extent that that can be discerned, as one of the factors in the sentencing synthesis because those sentencing practices are relevant to arriving at a sentence which is just in all of the circumstances of this case.[9]

[9] See Bromley v the Queen [2018] VSCA 329, (‘Bromley’); Stalio v The Queen (2012) 46 VR 426 at [52] – [54]; and Carter v The Queen [2018] VSCA 88 [53] – [55].

54There is no specific evidence before me as to sentencing practices in the mid-1960’s, but I think it is safe to proceed on the basis that sentences for this type of offending were generally lower.  The point was also made in Bromley that the gap between the offending and sentence enables me to view your rehabilitation not simply as an issue in prospect, but one which can be measured by your conduct subsequent to this offending.  In that respect, you appear to have led an otherwise blameless life and have been assessed as being a low risk of reoffending.

55Balanced against those considerations, however, is the fact that there is now a much greater understanding of the impact of this kind of offending has on child victims.  Courts now must take into account the damage and devastation this kind of offending causes even though that understanding was not likely to have been a feature of sentences imposed back in the 1960’s.  Indeed, a notable feature of your case is the fact that the impact of your crimes has endured over the 50 or more years since you abused these children.  They are now in their 60’s and still struggle to deal with the damage this offending has done to their lives.  That enduring impact attests to the destructiveness of sexual assaults on children.

56Moreover, you did not suffer the condemnation associated with being a convicted child sex offender, which would have marked a substantial portion of your adult life had you been brought to justice promptly.  The delay between offending and disclosure, which you in part achieved by securing the silence of Linda Brown, has enabled you to live your life free of that stigma.

57In my view, Mr McConaghy's submissions as to the aggravating features of your offending are well made.  To have preyed upon these children at such a vulnerable time in their lives was a flagrant breach of trust and points to a high level of moral culpability.

58Although I have some sympathy for your wife in the difficult position in which your offending has placed her, I am not satisfied that the potential hardship caused to her is so exceptional as to enable mitigation of your sentence on that basis.  I acknowledge, however, that it would be a matter of considerable distress to you should you be forced to leave your wife of 61 years whilst you went into custody.

59I accept that your plea of guilty both facilitates the course of justice and illustrates your remorse for what you have done and, accordingly, the sentence will be substantially reduced because of that plea.  Even so, having regard to the seriousness of this offending and the number of victims involved, I am not persuaded that anything other than a term of imprisonment is appropriate.

60As to the question of whole or partial suspension of that term of imprisonment, the relevant legislation, s 27(1) of the Sentencing Act 1991, as it was before repeal, stated:

On sentencing an offender to a term of imprisonment, a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.

61Conscious as I must be of the importance of general deterrence for offending of this kind, I have nevertheless determined that it is desirable to wholly suspend the terms of imprisonment that must be imposed.  Your physical health is precarious, but perhaps more importantly, the ongoing deterioration in your cognitive capacity persuades me that is so.  To use Ms Matthews' expression, you 'cognitively struggle' now, and that condition will likely deteriorate rapidly

62There can be little doubt that a term of actual imprisonment would weigh more heavily upon you than a prisoner of normal health, and I am well satisfied that there is a serious risk that imprisonment would adversely affect your mental health.

Sentence

63Accordingly, the sentence to be imposed as follows:

64On charge 1, indecent assault, you will be convicted and sentenced to a term of imprisonment of six months.

65On charge 2, indecent assault, you will be convicted and sentenced to a term of imprisonment of 12 months.

66On charge 3, indecent assault, you will be convicted and sentenced to a term of imprisonment of eight months.

67On charge 4, gross indecency with a girl under the age of 16, you will be convicted and sentenced to a term of imprisonment of four months.

68On charge 5, gross indecency with a girl under the age of 16, you will be convicted and sentenced to a term of imprisonment of four months.

69I will order that three months of the sentence imposed on charge 1, five months of the sentence imposed on charge 3, two months of the sentence imposed on charge 4, and two months of the sentence imposed on charge 5 be served cumulatively upon the sentence imposed on charge 2, making a total effective sentence of two years' imprisonment. 

70I will further order that sentence of two years' imprisonment be wholly suspended for a period of two years.

71I will declare that in respect of the sentences imposed on charges 3, 4 and 5, you have been sentenced as a serious sexual offender and I will cause that declaration to be noted in the records of the court.

72I will also declare pursuant to s 6AAA of the Sentencing Act 1991, that but for your plea of guilty, you would have been sentenced to a total effective sentence of three years' imprisonment with a non-parole period of 12 months.  And I will cause that declaration to be noted in the records of the court.

73I note that by reason of the fact that you have been convicted of one class 1 offence and four class 2 offences under the Sex Offenders Registration Act 2004, that pursuant to s 34(1)(c)(ii), you will be subject to the reporting requirements of that Act for the rest of your life.

74I will further order that pursuant to s 464ZF of the Crimes Act 1958, that you be required to provide a sample of saliva, being a forensic sample, for the purpose of provision of that sample to the DNA database, and you should understand that if you do not consent to the provision of that sample, then an authorised member of the police force may use reasonable force to obtain a blood sample for that purpose. 

75The reasons for the making of the order under s 464ZF is that, in my view, the seriousness of the offences warrant the making of the order. Now, Mr Burton, there is just one matter I need to say to you, if I may? Would you mind standing one last time?

76The order I have made is the imposition of a term of imprisonment, which is being suspended for two years.  You should understand that if during the course of the next two years, you commit an offence punishable by imprisonment, you can be brought back before me for the purpose of being resentenced in respect of these matters and, indeed, for any new offending that occurs during the currency of the order; do you understand that?

77OFFENDER:  Yes, Your Honour.

78HIS HONOUR:  Yes, very well.  Take a seat.  Mr Howman, no doubt you will reinforce those matters to Mr Burton.

79MR HOWMAN:  I will, Your Honour.  Thank you.

80HIS HONOUR:  Yes, very well.  Adjourn the court. 

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