Director of Public Prosecutions v Davidson (a Pseudonym)
[2019] VCC 424
•2 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH DAVIDSON (a Pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 September 2018, 15 March 2019 | |
DATE OF SENTENCE: | 2 April 2019 | |
CASE MAY BE CITED AS: | DPP v Davidson (a Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 424 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:Meissner v The Queen (1995) 130 ALR 547; RH McL v R (2000) 174 ALR 1; DPP v Hopson [2016] VSCA 303; Matheas v The Queen [2017] VSCA 330; Gordon v The Queen [2013] VSCA 343; DPP v Bales [2015] VSCA 261; Zhao v The Queen [2018] VSCA 267; R v AWF (2000) 2 VR 1; GEM v The Queen [2010] VSCA 168; R v Beevers [2016] VSCA 271; Grantley v the Queen [2018] VSCA 112; R v Verdins & Ors (2007) 16 VR 269; R v Renzella [1999] VSCA 85; R v Broad [1999] 3 VR 31; DPP v Toomey [2006] VSCA 90; DPP v DJK [2003] VSCA 109; Shawcross (a Pseudonym) v The Queen [2018] VSCA 295; DPP v Dalgleish [2017] HCA 41; PG v R (2013) VSCA 9; Roosmalen v R (1989) 43 A Crim R 358; Clarkson v The Queen (2011) 32 VR 361; Mill v The Queen (1988) 166 CLR 59; Contin v R [2012] VSCA 247; McIntosh (a Pseudonym) v The Queen [2018] VSCA 321; Smith v The Queen [2018] VSCA 258.
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A. Roodenburg | Office of Public Prosecutions |
| For the Accused | Ms M. Walker Mr T Antos | Melinda Walker (10/09/18) Ann Valos Criminal Law (15/03/19) |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the accused, victims and family or witnesses.
HER HONOUR:
1 Kenneth Davidson[1], you have pleaded guilty to one charge of persistent sexual abuse of a child under 16. The maximum penalty applicable is 25 years’ imprisonment.
[1]Kenneth Davidson is a pseudonym.
2
You have been represented at two plea hearings by different counsel,
Ms Walker on 10 September 2018 and Mr Antos on 15 March 2019. It is necessary for me to address submissions of both counsel in order to fairly represent all matters put by them at your plea hearings.
3 Your offending arises out of events which took place between 1 May 2013 and 7 July 2014, involving the victim of your offending, Eric Thomas-Burns[2]. It is not necessary to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to say that I regard the facts in this case as most serious, disturbing and repugnant.
[2]Eric Thomas-Burns is a pseudonym.
4 At the time of this offending, you were 28 and 29 years of age and Eric Thomas-Burns, between seven to eight years of age, your offending occurring over a period of approximately 14 months. As it turns out, you had been sexually abusing Eric Thomas-Burns since he was six years of age, and I shall refer to that earlier offending later in these sentencing remarks.
5 Eric Thomas-Burns’ mother is Jill Burns[3] and his father, Gavin Thomas[4]. Gavin Thomas is of Balinese background and met Eric Thomas-Burns’ mother when she was on holidays there in December 2005. He then moved to Australia in 2007 to live with Jill Burns and Eric Thomas-Burns.
[3]Jill Burns is a pseudonym.
[4]Gavin Thomas is a pseudonym.
6 In 2009, Jill Burns and Gavin Thomas separated and Gavin Thomas returned to Indonesia. In March 2011, Jill Burns and Eric Thomas-Burns moved to South Australia.
7 Jill Burns met you in December 2011. At that time Eric Thomas-Burns was five years of age. Shortly after meeting, you moved in with Jill Burns and commenced a de facto relationship in South Australia. In May 2013, you, Jill Burns and Eric Thomas-Burns moved to Victoria.
8 Your offending before me occurred immediately upon you coming to Victoria as noted in the dates on the charge before me, and continued as I said, for approximately 14 months.
9 By way of background, Jill Burns described that you and Eric Thomas-Burns got along well from the start and that you paid Eric Thomas-Burns a great deal of attention. This caused tension in her relationship with you, as you insisted helping Eric Thomas-Burns with things he could do on his own, including going to the toilet, showering and dressing.
10 In 2012, Jill Burns became suspicious of the contact between you and Eric Thomas-Burns and confronted you on a number of occasions. You denied the allegations. I note as recently as 6 September 2018 and referred to in a report of Carla Ferrari, to which I shall shortly refer in detail, you denied Jill Burns ever confronted you or questioned you in the past (see paragraph 71). Your counsel told me you no longer relied upon that statement accepting you had been spoken to by Jill Burns.
11 From about five months into the relationship between you and Jill Burns, Jill Burns recalled Eric Thomas-Burns regularly complaining about having a sore bottom.
12 Following an occasion when Jill Burns thought something had occurred between you and Eric Thomas-Burns, Jill Burns said she was leaving you. You then took a possible overdose of medication and spent two weeks in hospital. Jill Burns told you she would be returning to Victoria, however, after further discussions, Jill Burns agreed to give you another chance and the family moved to Victoria in May 2013.
13 When you first came to Melbourne, you lived with Jill Burns’ mother and her husband in Rye. About a month later in June 2013, you, Jill Burns and Eric Thomas-Burns moved to Tootgarook.
14 There were many occasions when Jill Burns was with you when she left Eric Thomas-Burns in your care, including times when Jill Burns was admitted to hospital in South Australia and Victoria, when she went overseas and at times when she visited her mother and would leave Eric Thomas-Burns at home.
15 In May 2014, Jill Burns, Eric Thomas-Burns and Jill Burns’ mother went to Bali to see Gavin Thomas. Questions were raised regarding whether anything had occurred between Eric Thomas-Burns and you.
16 Following return from Bali, given the concerns expressed, Jill Burns approached Eric Thomas-Burns and said “[Eric], Kenneth told me he’s been touching you". Eric Thomas-Burns initially denied that happened then started crying and agreed he had been touched by you.
17 On 30 May 2014, Jill Burns took Eric Thomas-Burns to a GP and expressed concerns about her son being sexually abused by you. The GP said she would send a referral for a counsellor in the mail. She did not complete a physical examination of Eric Thomas-Burns.
18 Jill Burns ended her relationship with you and she and her son went to stay at her parents’ home.
19 In mid-June 2014, Jill Burns, her mother and Eric Thomas-Burns again went to Bali to see Gavin Thomas. Jill Burns told you to move out of the house while they were away. They arrived back in Melbourne on 5 July 2014 and found that you had not moved out. Jill Burns and Eric Thomas-Burns went again to live with her parents.
20 On 8 July 2014, Jill Burns returned to the GP as she had not received the referral to the counsellor. While she was with the GP, Eric Thomas-Burns stayed in the car with his grandmother.
21 During that time, Eric Thomas-Burns disclosed to his grandmother, Margaret Burns[5], what had occurred between you, including that you had touched him on the penis and hurt his back and ‘bum’.
[5]Margaret Burns is a pseudonym.
22 When Jill Burns returned to the car, Margaret Burns said they needed to go and report the matter to police which they did.
23 On 8 July 2014, Eric Thomas-Burns participated in his first VARE and over the following days made a number of disclosures to Margaret Burns with further VARES on 16 July 2014.
24 During the course of three VAREs, Eric Thomas-Burns disclosed numerous instances of anal penetration, penetration of his mouth by your penis and indecent acts in both South Australia and Victoria when he was six to seven years of age.
25 You are currently undergoing sentence for three charges of unlawful sexual intercourse with a person under 14 (being Eric Thomas-Burns), when you were in South Australia. That offending related to three occasions of anal penetration between January 2013 and the end of April 2013, prior to the family’s move to Victoria in May 2013, where your offending before me continued.
26 I turn to your offending before me, referrable to the charge on the Indictment. Eric Thomas-Burns described an occasion after you, Jill Burns, and Eric Thomas-Burns returned to Victoria. You and Eric Thomas-Burns went for a bike ride along a beach and whilst in the toilets at Rosebud, you anally penetrated him.
27 On another occasion, when you and Eric Thomas-Burns were on a bike ride in Tootgarook, you again penetrated his anus with your penis.
28 Eric Thomas-Burns described occasions when you would put a hole in his underwear and make him wear them with his penis through the hole. I discussed this with your counsel. On one of those occasions, Eric Thomas-Burns described you playing with his penis.
29 At the time this occurred, Eric Thomas-Burns said you downloaded shows onto your phone which had "rude stuff" on them, like when you put your penis into Eric Thomas-Burns’ anus. This was relied upon by the prosecution as uncharged sexual conduct, or it really should be other sexual misconduct.
30 The last time Eric Thomas-Burns recalled anything sexual happening between you and he was in about May 2014. You and Eric Thomas-Burns were in the lounge room and you asked Eric Thomas-Burns “Can you make it go hard?” and “Can you suck it?” You put your penis into Eric Thomas-Burns’ mouth and also anally penetrated him.
31 The following morning, you drove Eric Thomas-Burns, Jill Burns and Margaret Burns to the airport to go to Bali.
32 Eric Thomas-Burns was given presents by you and told your times together were "special times". You told Eric Thomas-Burns if he told anyone about the "special times" you would get angry with him.
33 On 8 July 2014, police attended your address in Tootgarook. You were arrested and interviewed. You denied the allegations when they were put to you. You denied touching Eric Thomas-Burns in any way that was inappropriate. In that regard, I discussed with your then counsel, Ms Walker, Ms Ferrari’s report dated 6 September 2018, (paragraph 71). Of course, I am aware you have pleaded guilty to the charge before me, however, the contents of paragraph 71 concern me, relevant to the extent of your remorse and rehabilitation prospects and the transcript will reveal that discussion.
34 Following that interview, you were released on summons. You subsequently left Victoria for Queensland.
35 On 13 July 2015, you were extradited to South Australia from Queensland on those charges relating to Eric Thomas-Burns. On 18 April 2017, you were sentenced on those three charges to 11 years imprisonment, with a non-parole period of five years and six months. That sentence was backdated to 13 July 2015, being the date of your extradition from Queensland. I discussed with counsel the sentencing remarks of his Honour Judge Barrett on 18 April 2017.
36 Your head sentence relevant to that sentence expires on 13 July 2026 and you will be eligible for parole from 13 January 2021. You are, therefore, currently serving a sentence with no pre‑sentence detention, pursuant to s.18 of the Sentencing Act 1991 to be declared for your offending before me.
37 On 10 May 2017, a warrant was issued for your arrest and you were transferred to Victoria on 21 February 2018, following an interstate prisoner transfer application.
38
The prosecution filed a chronology which refers to your transfer to Victoria in February 2018, a filing hearing on 9 March 2018, committal mention on
20 April 2018. At a further committal mention on 30 April 2018, you entered a plea of guilty to the charge and the matter proceeded by way of straight hand-up brief.
39 You have pleaded guilty to this offence and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea of guilty, been spared the time and cost of a trial, and witnesses, in particular Eric Thomas-Burns, have not been required to give evidence upon your trial.
40 I discussed your plea of guilty in particular, not only with Ms Walker, but with Mr Antos, who appeared at your plea hearing on 15 March 2019. Mr Antos conceded you continued to deny this offending and your remorse for your offending he said, did not extend beyond your plea of guilty.
41 I accept your plea of guilty has utilitarian value, see Meissner v The Queen[6].
[6](1995) 130 ALR 547
42 The victim of your offending and his family have suffered considerably in the manner described in their victim impact statements and I shall return to them shortly.
43
As you have previously been convicted of three sexual offences in South Australia and were sentenced to a term of imprisonment in relation to them, you fall to be sentenced as a serious sexual offender pursuant to s.6D/s.6E of the Sentencing Act 1991 on the charge before me. Your counsel, Ms Walker, who appeared at the earlier hearing, agreed such applied to you, as did
Mr Antos on 15 March 2019.
44 When determining the length of the sentence to impose, I must regard the protection of the community from you as the principle purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances (s.6D). See also s.6E of the Sentencing Act 1991.
45 The prosecution do not seek a disproportionate sentence and I am of the opinion that I can appropriately sentence you without the need to impose a disproportionate sentence.
46 There has been much judicial discussion regarding sentencing relevant to s.6E of the Sentencing Act 1991, See RH McL v R[7], including recently in DPP v Hopson[8] and Matheas v The Queen[9].
[7] (2000) 174 ALR 1
[8] [2016] VSCA 303 [48]-[52] (‘Hopson’)
[9] [2017] VSCA 330 [46]-[50] (‘Matheas’)
47 The "tension" regarding the serious sex offender provisions and totality has been discussed.
48 In Matheas, Acting Court of Appeal Justice Tate, referring to Gordon v The Queen[10] and DPP v Bales[11] stated:
“… (when s.6E is enlivened), there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s.6E, that is, full effect is not to be given to the totality principle as though s.6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purpose …”
[10] [2013] VSCA 343
[11] [2015] VSCA 261 [50]
49 Totality still has relevance. See Zhao v The Queen[12] and Hopson.
[12] [2018] VSCA 267 (‘Zhao’)
50 Your offending before me is a class 1 offence and as such you are subject to mandatory registration under the Sex Offenders Registration Act 2004 and obliged to report for life. Your counsel, Ms Walker, agreed such classification and duration applied to you and Mr Antos was going to further advise his position on this at the end of these sentencing remarks.
51 There are a number of aggravating features of your offending. Giving Eric Thomas-Burns gifts or enticements, pre-planning to get Eric Thomas-Burns away on his own with you, threats to Eric Thomas-Burns should he tell of your "special secret", the breach of trust of Eric Thomas-Burns and his mother, Jill Burns. Eric Thomas-Burns regarded you as his father and you were aware of that. There was also a significant age difference between yourself and Eric Thomas-Burns.
52 You have admitted your prior criminal record which for the most part, contains motor vehicle offences, and an appearance at Murray Bridge in South Australia on 31 July 2006, on a charge of unlawful possession. You do not have any other prior criminal history and I specifically note, not for sexual offending.
53 Before me were the reasons for sentence on 18 April 2017 in South Australia. I note when sentencing you, His Honour Judge Barrett was satisfied your offending occurred over a five month period, involving repeated engagement in penile/anal sexual intercourse with Eric Thomas-Burns who was then six years of age. You pleaded guilty on the day set for your trial. His Honour noted you remained in substantial denial about your offending, notwithstanding your pleas of guilty. It was also noted you denied any offending when interviewed by police.
54 His Honour described your offending as a “serious course of conduct over a period of about five months and it was a gross breach of trust”.
55 His Honour found that you became “besotted with Eric Thomas-Burns”. You groomed, manipulated and controlled him.
56
His Honour, when sentencing you, accepted your account that you had also been sexually interfered with in your youth by a doctor as I understand it, and also your sisters when between the ages of 8 and 10 and I discussed this with Ms Walker. There was a lack of material before me to confirm that abuse and I also discussed the differing accounts given by you to Ms Ferrari, regarding that alleged abuse by your sisters compared to your instructions before His Honour. The subsequent report received from Ms Ferrari dated
26 October 2018 did not clarify that.
57 I discussed with Ms Walker, at the first plea hearing, the decisions R v AWF[13], GEM v The Queen[14] and R v Beevers[15].
[13] (2000) 2 VR 1 (‘AWF’)
[14] [2010] VSCA 168
[15] [2016] VSCA 271 (‘Beevers’)
58 In Beevers regarding the offender, who was a victim of childhood sexual abuse, the court stated:
“If [childhood sexual abuse] is relied upon by way of mitigation, an offender will carry the onus of establishing the fact of sexual abuse and the manner in which it is relevant to sentence. The weight to be given to an offender’s childhood sexual abuse will vary from case to case. Evidence of such abuse generally ought not to be adduced with some general expectation that there will be a substantial reduction for that reason, in every set of circumstances.” (citing AWF)
59 In Grantley v the Queen[16] the court referred to sexual abuse of the offender:
“The Judge also took that into account an episode of sexual abuse against Grantley by his father when he was five (touching him on the buttocks and then the penis) but, in the absence of any clear evidence to connect that episode with the offending, the Judge concluded that it did not form a basis for reducing his moral culpability.”
[16] [2018] VSCA 112 [13] (‘Grantley’)
60 Ms Walker conceded there was a lack of objective evidence regarding your own alleged sexual abuse. Even accepting such abuse occurred, Ms Walker did not rely upon it as decreasing your moral culpability for this offending, in particular, noting the lack of nexus between any such abuse and your offending before me. Her concession in that regard was appropriate on the material before me, including the reports of Ms Ferrari.
61 Both Ms Walker and Mr Antos prepared written Outlines of Submissions for your plea hearings and addressed them during the course of them.
62 I was told you have used your time in custody productively. In custody in South Australia, you worked in the industries area of the prison and in Victoria worked in the powder-coating area. You said you had not yet been able to undertake any courses in Victoria, as you were still on remand for this offence.
63
I turn to the first report of Carla Ferrari, Forensic Psychologist, dated
6 September 2018. Ms Ferrari referred to your unresolved childhood trauma, including your own sexual abuse. Ms Ferrari also addressed your risk of re-offending, especially involving sexual offending, although as I discussed with both counsel, Ms Ferrari’s assessment of your risk seemed "incomplete".
64 In that report, Ms Ferrari referred to your history, as did Mr Antos in his written submissions. You are 34 years of age at sentence, the youngest of six children. Your parents currently reside in Tasmania, although had been in Victoria and have visited you in custody. You were born in New Zealand. The family migrated to Australia when you were three years of age and thereafter you lived in a number of Australian States.
65 You described being particularly close to your parents, with minimal if any, contact with your siblings. I was told your parents remained supportive of you. You disclosed a history of ill health as a child. You were born with a septic defect and cardiomegaly. You also had severe asthma from birth and spent time in hospital as a child. Your family moved throughout Australia to find a suitable climate to deal with your health issues.
66 You reported being an average student and of being diagnosed with ADHD when seven, and medicated for that. At age 14, you were diagnosed with mild Dyslexia. You also found it difficult to maintain consistency in friendship/peer groups and education as the family moved around.
67 You were frequently in trouble for fighting at school and were often suspended. You left school in Grade 10, returning in Grade 11 for a short period of time, ultimately completing that year equivalent via correspondence.
68 As a result of the family moving frequently, you described social difficulties and finding it hard to adjust.
69 You subsequently completed a Certificate III in Water Industry Operations, Electrical Welding. You completed other courses also referred to within the report, see (paragraph 33). Your longest period of employment was two-and-a-half years, generally otherwise employed for about six months.
70 You described having only had a few serious relationships, each lasting approximately three years. You confirmed you met Jill Burns in approximately 2011, and described your relationship with Jill Burns as "really good" initially, but deteriorating once you moved to Victoria.
71 You reported being close to Eric Thomas-Burns because the child’s father was not involved in his life. You acted as a father figure and saw Eric Thomas-Burns as "your own son".
72 You have two daughters from a previous relationship, although have not seen them for approximately five years. You were a carer for one of the children for approximately four months, however, were forced to return your daughter to her maternal grandmother’s care. You instructed there were ongoing issues regarding custody from 2013.
73 You described a history of depression and anxiety over the years with mood fluctuations. You were diagnosed with ADHD at seven years of age and prescribed medication. You were diagnosed with Bipolar Affective Disorder in approximately 2009/2010 and prescribed medication. Also, you went days without sleep. You instructed you suffered from depression and anxiety over the years.
74 You described avoiding engaging with psychologists due to a fear of your supressed emotions being triggered. You had seen a psychologist when you were younger, however, could not provide details of that.
75 You reported using marijuana from the age of 14 to manage fluctuations in your mood and anxiety, ceasing at one stage, although recommencing when you began your relationship with Jill Burns. Since moving to Victoria you rarely used. You used to binge on alcohol until you were 22, thereafter a social drinker. You had never undertaken counselling for alcohol or cannabis use.
76 You were in a relationship with Jill Burns for approximately two and a half years and denied any problems in the relationship, apart from her, you said, being controlling. After moving to Victoria, Jill Burns was spending increasing amounts of time with her mother, leaving Eric Thomas-Burns in your care. You said you grew apart from Jill Burns and experienced intimacy problems.
77 You told Ms Ferrari the first time you were aware of these allegations was when Victoria Police came to question you. You described being shocked and disgusted, believing Jill Burns was trying to frame you out of vindictiveness. It seems that remains your position, despite pleading guilty to the charge.
78 In that report, Ms Ferrari observed you did not wish to discuss the offences in detail, however, said you fully understood the wrongfulness of your offending.
79 Ms Ferrari concluded the results of testing, indicated you were then experiencing moderate symptoms of depression, with a moderate level of stress.
80 Regarding testing for sexual recidivism, she said you demonstrated a number of stable and dynamic risks factors which may elevate your risk of future sexual offending. There was, however, no indication of poorly controlled expression of sexual impulses, nor sexual pre-occupations, apart from engaging in pornography use (see paragraph 88 of her report). I discussed with Ms Walker and Mr Antos the absence of reference by Ms Ferrari to a number of matters when assessing your risk.
81 Using the SONAR Risk Assessment Tool, Ms Ferrari concluded you were a low-moderate risk of re-offending, in relation to sexually-based offences.
82 Using the Sexual Violence Risk–20 Assessment Tool, you were deemed to be a low-risk level, although you did score moderately on two factors which raised your risk level to moderate (see paragraph 97). There were a number of factors identified in her report, which led her to conclude you were a moderate risk of sexually-based recidivism (see paragraph 105). I discussed my concerns regarding this assessment with both Ms Walker and Mr Antos.
83 Ms Ferrari concluded the main precipitant of your offending appeared to relate to your psychosocial stressors due to custody issues with your daughters and your relationship with Jill Burns beginning to deteriorate. Perpetuating factors were your unresolved childhood trauma relating to your illness and alleged sexual abuse. I refer to my earlier opinion regarding your own alleged sexual abuse.
84 In the opinion of Ms Ferrari, you had a number of protective factors to mitigate your re-offending, including supportive parents and a close friend who visited you regularly.
85 Your counsel, Ms Walker, conceded she was not relying upon any of the principles in R v Verdins & Ors[17] however, I note Mr Antos sought to rely on principle 5.
[17] (2007) 16 VR 269 (‘Verdins’)
86 Ms Ferrari undertook depression and anxiety testing, and I discussed that at some length with your counsel, Mr Antos. Whilst I note Ms Ferrari concluded your depression and anxiety were impacting upon your functioning, there was a lack of reference to how, to what extent, and in what ways your depression and anxiety impacted your functioning. I also note that at the time of her supplementary report in October, you were awaiting review by a prison psychiatrist. I was told there was no material available relevant to whether that had occurred or not.
87 Turning to the principles in Verdins, particularly 5, the prosecution submitted that the reports of Ms Ferrari were insufficient when assessing the impact of any depression or anxiety experienced by you in custody. In paragraph 36 of her report, she did not say how imprisonment would be more burdensome and that the material before me, she urged, did not enliven Verdins.
88 In my opinion, the material before me does not enliven Verdins, principle 5, relevant to your depression and anxiety. Whilst I can and do take into account such matters consistent with general sentencing principles, I do not consider that given the lack of detail regarding impact upon you in custody, Verdins to be enlivened.
89 I turn to the supplementary report of Ms Ferrari dated 28 October 2019.
90 An adjournment was requested by Ms Walker to obtain this further report following my discussion with her regarding some concerns I had with the September report content.
91 In particular I note you maintained nothing occurred between yourself and Eric Thomas-Burns by way of offending, and that Jill Burns never confronted you about your relationship with Eric Thomas-Burns and nor did she express any concern.
92 I also referred to holes in Eric Thomas-Burns’ underwear, (paragraph 19 of that report), and your denial of any "foul play" regarding that.
93 I also sought clarification of your age when you say you were abused. You instructed the sentencing remarks from South Australia were incorrect, that the abuse had occurred in your developmental years, you suggested when five to six years of age.
94 Ms Ferrari in her October report stated she concentrated on your offending after you and your family moved to Victoria, and did not include your offending in South Australia, to which you had pleaded guilty, when undertaking her risk assessment.
95 At the interview with you, you continued to deny any offending occurred in either South Australia or Victoria.
96 Ms Ferrari acknowledged that in her September report, there was evidence of minimisation and deflection of blame by you, in relation to the alleged offending. She rated you as a high risk relevant to that factor; however, concluded in the majority of the other risk factors, you fell within the low and moderate ranges, with an overall risk for re‑offending of moderate. I queried how Ms Ferrari could so conclude, given she did not take into account in her assessment, your pleas of guilty to the South Australian offending, and yet again denials of it and other matters of concern.
97 Mr Antos conceded, as I understood, there were some concerns regarding Ms Ferrari’s assessment of you as a “moderate” risk in light of matters not taken into account, by her, and your continued denial of your offending, other than your plea of guilty.
98 Whilst he submitted your assessment by Ms Ferrari was an “overall risk of re-offending as moderate”, he accepted some qualification regarding that conclusion.
99 Mr Antos on 15 March 2019 conceded that there was no pre-sentence detention applicable, as you were currently serving a term of imprisonment imposed in South Australia. However, he submitted it was open to the court to consider the time spent from 9 March 2018, (Victorian filing hearing) to the date of sentence as R v Renzella[18] “time”, as you have been remanded on these offences over that time.
[18][1999] VSCA 85 (‘Renzela’)
100 Ms Roodenburg, who appeared on behalf of the prosecution, submitted consistent with R v Broad[19] that could be taken into account as Renzella time. In Renzella, the court referred to the time “served” not s.18 of the Sentencing Act time, but as it has been called "Renzella time". The common law may allow such time to be generally taken into account in fixing the sentence. This occurs when justice requires the court to credit the offender for time spent in custody. The amount to be credited is not a mathematical exercise and no specific words are required. I have, however, taken that time into consideration when determining this sentence. Relevant to this submission, Ms Roodenburg provided written sentencing submissions dated 30 October 2018.
[19][1999] 3 VR 31 [10]–[12]
101
Further details were provided by both Ms Roodenburg and Mr Antos on
27 March 2019, following a request for further information, following your plea hearing (Exhibit D) and I have referred to that a little earlier today as Exhibit D.
102 Mr Antos conceded your rehabilitation prospects were, at best, guarded. I am concerned about your rehabilitation prospects, in particular mindful of paragraph [71] of Ms Ferrari’s September report and your continued denials.
103 Addressing your rehabilitation prospects, Ms Roodenburg submitted your prospects of rehabilitation were arguably "poor", referring to Hopson. I accept at best your prospects are guarded, the highest at which I would place it, given the material before me and your attitude towards this offending by way of denials and not yet having treatment or assessment. Your prospects of rehabilitation cause me concern.
104 I have concerns as to whether your rehabilitation prospects can even reach the level of “guarded”.
105 But in sentencing you, I of course must seek to maximise your prospects of rehabilitation as they may be.
106 Ms Walker conceded a term of imprisonment was the only appropriate disposition, as did Mr Antos. Those concessions in my opinion, were appropriate.
107 It was also conceded, and appropriately so, your offending had caused considerable psychological harm to Eric Thomas-Burns, and the secondary victims, Jill Burns and Margaret Burns, consistent with the victim impact statements before the court.
108 There were a number of victim impact statements before me. They are eloquent and it is difficult to do justice to them in these brief sentencing remarks, but I have read those statements.
109 There were two statements from Eric Thomas-Burns. He said that before he met you, he used to sleep in his own bed, in his own room, could go to the toilet by himself, shower on his own, play on his own and had heaps of friends. He was so excited to be getting a "new daddy", however, that was not to be. He described that instead you just kept hurting him. He put up with it because he just wanted a daddy. He also put up with it for so long because you told him you would get one of your friends to hurt his mum. He cannot sleep on his own now, has to sleep with his mum and cannot go to the toilet on his own or even go the shower. He was scared all the time.
110 All he does is sit in his room with his mum all day. He hates school. He hardly had any friends. He said he and his mother had nowhere to live because of you.
111 His grand pop and uncles do not talk to him anymore. It is like they do not like him and it hurts. You have ruined his life. He is just 10 years old and he hates feeling like this.
112 In his second statement, Eric Thomas-Burns said he did not care for life much, rather hated it. He felt alone and that his family did not want anything to do with him, only his nan. He spent a lot of time in his room on his own and at times he does not eat.
113 He found it very hard to meet to people or talk to them and hated trying to sleep, often sitting up until three or four in the morning. He saw a counsellor for a few months, but then they left. It was like he did not see anyone, because they always left. Because of the trauma of your offending, he used to grind his teeth and had to have his teeth pulled out.
114 He did not like hearing your name. It made him feel angry, sad and sick. He hated what had happened to him. He felt ashamed and embarrassed.
115 He was scared someone was going to hurt his mum. He wished he felt safe and did not feel scared all the time. He hated the way he felt and wished at times that he was not alive.
116 Before your offending he said he was full of life, loved singing, dancing, sports, hanging out with friends and cousins. Now he hated all that. When he did sleep, he had bad dreams and woke up crying. He was going to see someone soon to hopefully start to feel better.
117 There was a victim impact statement from Jill Burns, Eric Thomas-Burns’ mother. Before you came into their lives, she and her son were a happy family. Her son had so much confidence and he would dance and show off his dancing style in front of friends and family. She was a very happy mother.
118 After Eric Thomas-Burns disclosed your offending, she was in shock, felt very angry, sad, disgusted, guilty, depressed and numb.
119 Her son used to go out, loved going out to visit friends and relations. He was also good at school and she was very proud of him. Her son gradually began to change, which confused and worried her.
120 She described you as having been very controlling, making it hard for her son and she to do anything together. You would play with Eric Thomas-Burns all the time and often slept with him.
121 Since your offending "came out", Eric Thomas-Burns did not like going anywhere but would rather stay in his room. His school marks had slid badly and he now hated school and hated life. He did not eat for a long time.
122 Jill Burns’ health had also deteriorated as a result since disclosure of your sexual abuse of her son.
123 She was prescribed antidepressants and had commenced counselling.
124 She felt guilty having left her son. She felt she had let him down and did not protect him. She felt remorseful and sad for not protecting her son. She described that she was “black listed from the Housing Trust” due to her leaving the relationship with you “in a hurry”, and therefore over the past four years, she and Eric Thomas-Burns had been couch surfing at her mother or brother’s home. They did not have a home they could call their own.
125 She felt angry a lot of the time. You had taken much away from she and her son. She had difficulty sleeping and her health had suffered terribly. Her son’s behaviour had changed for the worst.
126 Her son did not have any male role models in his life except for his father who lived overseas and that relationship was strained. She did not trust anyone with her son.
127 Eric Thomas-Burns told her he was worried about her and he feared someone you knew was going to shoot her. Her son had nightmares at least four times a week and would grind his teeth, due to stress and trauma, to the point he had to have them cut out.
128 She described that she and her son lived in her bedroom, not socialising or going out.
129 At the start of this year, the Department of Health and Human Services made them take a house in Frankston, which was outside the area of Rye and Rosebud where she had support mechanisms.
130 She felt guilty regarding her son as she was not able to regain the happiness they were used to. She felt she had let her son down because she did not protect him. He was so traumatised, it broke her heart to hear him say he wished he was dead. There was never ending guilt, pain, depression, sadness and a nightmare that never ended.
131 There were also two victim impact statements from Margaret Burns, the mother of Jill Burns (that is Eric Thomas-Burns’ grandmother). She noticed a change in her grandson’s behaviour from being a happy child, to one who stopped smiling and was never happy. That change was before his sixth birthday. She would ask him what was wrong, but he would not say. She now watches Eric Thomas-Burns every day and heard him say that he wanted to “kill himself”. She said you had destroyed her daughter and her grandson’s life. You took an innocent boy and destroyed him. Her grandson was too scared to go anywhere without her daughter or her.
132 She described having to be strong for her grandson and her daughter to support them through this. She was sorry she did not know what was going on. She was sorry she did not protect him. She felt she had let her "guard down" and blamed herself. She felt like a weak person. She always promised she would protect Eric Thomas-Burns and had failed Eric Thomas-Burns and Jill Burns.
133 Looking at Eric Thomas-Burns, she said she saw a young child ripped apart, hurt, bribed and groomed. Eric Thomas-Burns was seeing counsellors.
134 Eric Thomas-Burns she said did not want to leave his home or see his friends – Eric Thomas-Burns did not trust anyone. He spent a lot of his time in his room.
135 The effects upon a victim are a relevant sentencing consideration. The courts have also referred to the importance of social rehabilitation.
136 In that regard, a number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[20], in which Vincent JA referred to social rehabilitation, citing DPP v DJK[21]. His Honour stated:
“Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. His Honour said, "In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[20] [2006] VSCA 90
[21] [2003] VSCA 109
137 The effects upon a victim are a relevant sentencing consideration, (see s.5 Sentencing Act 1991), but I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
138 The prosecution provided a written outline of submissions on sentence, noting the significant breach of trust involving Eric Thomas-Burns and his mother. I agree.
139 The prosecution also referred to the age difference between yourself and the victim as being significant. That is correct.
140 Regarding the objective gravity of your offending, Ms Roodenburg referred to it occurring over a significant period of time in Victoria, i.e. over approximately fourteen months.
141 In that regard, I was referred me to the decision of Shawcross (a Pseudonym) v The Queen[22]. That offending was described by the Court of Appeal as “extremely serious offending” having occurred over a period of approximately two years and involving his young daughter. The court agreed with the Sentencing Judge that the offending fell at the "higher end of the middle range of seriousness’" for this offending. Ms Roodenburg submitted your offending was "higher" on the scale of seriousness compared to the offending in Shawcross.
[22][2018] VSCA 295 (‘Shawcross’)
142 That your offending was serious, including three occasions of it she said, of anal penetration and also penetration of Eric Thomas-Burns’ mouth. I agree that your offending is towards the higher end of the scale of conduct capable of constituting this offence.
143 Ms Roodenburg submitted there was a level of planning and premeditation involved in your offending. You would often take Eric Thomas-Burns away from his mother on activities that gave you an opportunity to be alone with him and to offend. Eric Thomas-Burns was also "vulnerable" as he desperately wanted a father figure.
144 The prosecution referred to the threats made to Eric Thomas-Burns not to tell anyone, saying “you had special times together” and if he told anyone about "special times" that you would be angry.
145 Ms Roodenburg submitted your moral culpability was high, I agree. There was nothing to suggest you were not functioning normally at the time of your offending, and no indication of any impairment in that functioning.
146 Turning to the victim impact statements, Ms Roodenburg submitted that they spoke clearly of the detrimental effect of the offending on the family. That is apparent.
147 Ms Roodenburg observed the courts recognised sexual penetration of a child as a violent act which contributed to the serious nature of it, citing DPP v Dalgleish[23].
[23][2017] HCA 41 [57] (‘Dalgleish’)
148 Ms Roodenburg referred to the need for general and specific deterrence when sentencing you, particularly as this involved sexual offending against children. I agree. There is a need for both when sentencing you.
149 Also the need she urged to protect the community from you and denounce your behaviour. I agree. I am concerned about your level of risk of future offending given your continued denials of it and lack of attempts to rehabilitate yourself in that regard.
150 The prosecution conceded that you demonstrated some level of remorse by your plea of guilty and that of course is so.
151 The prosecution submitted, and I agree, general deterrence is a predominant sentencing principle in cases involving sexual offending against children. The courts have repeatedly referred to the seriousness of sexual offending involving children, and in particular, those involving a parent or those in "locus parentis". If authorities are required, see PG v R[24] and from as early as Roosmalen v R[25] to relatively recent decisions of Dalgleish, Clarkson v The Queen[26] and Grantley, being mindful of course as I am, of the difference in the charges in those cases, to the one before me.
[24] (2013) VSCA 9
[25] (1989) 43 A Crim R 358
[26] (2011) 32 VR 361
152 It is very difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation and personal to an offender. I am, however, assisted by the principles stated by the courts when sentencing for similar types of offending.
153 There is as I have said, a need for specific deterrence when sentencing you, in my opinion, due to the repeated nature of your offending before me, this was not "one off" offending.
154 The prosecution accepted the offences committed in Victoria and South Australia were sufficiently connected in time and character to make the principal in Mill v The Queen [27] applicable when sentencing you. I agree.
[27] (1988) 166 CLR 59 (‘Mill’)
155 I was referred to Contin v R[28] although I note that decision did not refer to interstate sentencing of that offender. The court did, however, referred to Mill and interstate sentences with Victorian sentences in totality, which I have read, in particular (see paragraphs [38] and following).
[28] [2012] VSCA 247 [38]-[68]
156 I was also provided with McIntosh (a Pseudonym) v The Queen[29].
[29] [2018] VSCA 321
157 Addressing the principle of totality, Mr Antos also referred me to Mill. The principle of totality has application, despite you being sentenced as a serious offender relevant to s.6D and 6E of the Sentencing Act. See Smith v The Queen[30] and Zhao.
[30][2018] VSCA 258
158 The prosecution, however, submitted that whilst your offending before me was of a similar nature to that committed in South Australia, this offending nevertheless post-dated that South Australian offending, that these were distinct criminal acts committed in Victoria.
159 Had you been sentenced on all offences on the one occasion, I accept consistent with the authorities to which I have referred, some cumulation would have been appropriate and concurrency to reflect your offending conduct.
160 Pursuant to s.4 of the Sentencing Act 1991, I must fix a new single non-parole period in respect of all sentences (see s.14(2)(a) of the Sentencing Act 1991).
161 Turning specifically to sentence, Mr Antos conceded the principles of general and specific deterrence and denunciation were all relevant when sentencing you. He is correct, that a term of imprisonment was the appropriate disposition. I agree.
162 Mr Antos submitted it was open to the court to order the sentence to be imposed, to be served concurrently with that imposed in South Australia. In my opinion, however, some cumulation is appropriate.
163 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I do take into account general deterrence which is of considerable importance in a case such as this. Also specific deterrence when sentencing you as I have previously described.
164 I am also concerned about the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This concerns me until you address your offending behaviour. Your continued denials also concern me.
165 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
166 In sentencing you, I have taken into account you are currently undergoing the sentence imposed in South Australia in 2017 (and the authorities relevant to that sentence and further sentencing), including the principle of totality.
167 I sentence you as follows.
168 On Charge 1, you are convicted and sentenced to 8 years’ imprisonment.
169 Consistent with you being sentenced as a serious sexual offender on the charge before me, I direct that five years of that sentence be served concurrently and three years cumulatively upon the head sentence imposed in South Australia.
170
Pursuant to s.14 of the Sentencing Act 1991, I fix a new non-parole period of four years, three months and 11 days, I will explain that in a minute, from today’s date 2 April 2019. The effect of that order means that your current earlier sentence release date is 13 January 2021, it is now extended to
13 July 2023, i.e. by two and a half years. I hope that makes that clear.
171 I direct it be entered into the records of the court that you have been sentenced as a serious sexual offender on Charge 1 before me on the indictment.
172 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to the charge before me and been found guilty of it, I would have sentenced you to an overall head sentence of 18 years and set a new non-parole period of 6 years, 3 months and 11 days effective from today’s date. So there would have been more on the non-parole period obviously if he pleaded not guilty, but I do not think I need to define that any further. I think it makes it about six years, but anyway it works out as it is.
173
For completeness, there is no time to be declared as pre-sentence detention pursuant to s.18(4) of the Sentencing Act 1991. I have already referred to the Sex Offenders Registration Act or SORA as it is called. Do you agree
Mr Antos that he is - - -
174 MR ANTOS: Yes I do, Your Honour.
175 HER HONOUR: So it is mandatory for life?
176 MR ANTOS: Mandatory for life, Your Honour, yes.
177 HER HONOUR: Yes, all right. As you have just heard, your counsel, not only your first counsel, but your second counsel has agreed that you are to be registered pursuant to these Sex Offenders Registration Act for life, such an order being mandatory and so I make that order as I have already said.
178 In a moment my associate will approach you with documents relevant to the Sex Offenders Registration Act. She will ask you to simply sign acknowledging receipt of the paperwork. You are not being asked if you want to be on it or not, I have made that order, that is the end of it. What you are being asked to do is acknowledge receipt of the paperwork to show that she has given it to you. If you do not want to sign it, that is fine, but she has to ask you, it is her job. Now I do not think there are any other orders?
179 MS ROODENBURG: No, Your Honour, no other orders sought.
180 HER HONOUR: All right, now is there anything that is unclear about any of that?
181 MS ROODENBURG: No, Your Honour.
182 HER HONOUR: Are you sure? It is all pretty straight forward? In particular, it is basically another two and a half years on the bottom, if that makes sense.
183 MS ROODENBURG: Yes.
184 HER HONOUR: And I am sure it does. So I have asked you what you said about the SORA, that is fine, I can put that back, I have checked that, good, done. No other orders?
185 MS ROODENBURG: No, Your Honour.
186 HER HONOUR: All right, my associate is going to go down the back of the room. You can go with her if you want to Mr Antos, he is being asked simply to sign for the SORA documentation, all right?
187 MR ANTOS: Yes, Your Honour. Thank you, Your Honour.
188 HER HONOUR: Sorry?
189 MR ANTOS: Thank you, Your Honour.
190 HER HONOUR: Yes well wander down at your leisure. You can have a seat if you want to Mr Davidson, you do not have to stand up anymore. All right, you will have to pop downstairs I am afraid to have a chat to him, all right?
191 MR ANTOS: (Indistinct words).
192 HER HONOUR: No that is all right, no you are perfectly fine. I have got to get on with the next matter, that is all. All right, well thank you both very much for your assistance, unless there is anything further, Mr Davidson you will need to go out, thank you very much. That can be given to Mr Antos. You are going downstairs to see him?
193 MR ANTOS: I am, Your Honour.
194 HER HONOUR: Well it will be a copy of that for him to take away, that SORA.
195 MR ANTOS: Yes, thank you Your Honour. Thank you, Your Honour.
196 HER HONOUR: Yes, no thank you for your help. All right, nothing else in this matter?
197 MS ROODENBURG: No, Your Honour.
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