R v Burns - [2024] NSWDC 173

District Court

New South Wales

Medium Neutral Citation: R v Burns [2024] NSWDC 173
Hearing dates: 29 February 2024
Date of orders: 22 March 2024
Decision date: 22 March 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Head sentence of 6 years with a non-parole period of 4 years.

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child >10 <14 – Intentional sexual touching child >10 <16 — Intentional sexual touching child <10 — Child abuse material — Production / Dissemination / Possession.
CRIME — Child sex offences — Offender was a friend of the families of the victims, regularly in attendance in the family homes — Offending conduct occurred in victim’s homes — Offender claims offending conduct occurred while he was heavily intoxicated.
SENTENCING — No prior criminal history — Abuse of trust and authority.

Legislation Cited: Children (Criminal Proceedings) Act1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bugmy v The Queen [2013] HCA 37
Hockley v R [2023] NSWCCA 285
Lai v R [2021] NSWCCA 217
R v Barnes [2023] NSWDC 33
R v CMB [2014] NSWCCA 5
R v Duncan [2022] NSWDC 543
R v G [2008] UKHL 37; [2009] 1AC92
R v MJ [2023] NSWCCA 306
R v NC [2020] NSWDC 547
R v Olbrich [1999] HCA 54
R v PG [2020] NSWDC 144
R v Shiel [2022] NSWDC 648
R v Yates (a pseudonym) [2021] NSWDC 701
Texts Cited:
Nil

Category: Sentence
Parties: Crown
David Andrew Burns
Representation:
Counsel:
H Fitzhardinge (Crown)
M Fernando (Offender)
Solicitors:
Director of Public Prosecutions NSW (Crown)
Legal Aid Commission of NSW (Offender)

File Number(s): 2022/00368208
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants in accordance with section 15A of the Children (Criminal Proceedings) Act 1987 and section 578A of the Crimes Act 1900 (NSW).

JUDGMENT

David Burns appears for sentence with respect to 10 substantive offences arising from sexual misconduct with children to which he has pleaded guilty. An additional offence with respect to possession of child abuse material is also before me as a substantive offence.
There is a statutory prohibition pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A Crimes Act 1900 with respect to the publication of the names of any of the child victims or of information or evidence which would lead to their identification. As a consequence, these reasons will substitute pseudonyms with respect to each of the identified victims. I will not advert to the nature of the familial relationship between the offender and each of the children.
The first two victims were each living at premises which were regularly visited by the offender.
The first offending (sequence 1) occurred with the child “Stephanie” who was either 11 or 12 years of age. She recalls being in either Year 5 or Year 6 at school.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Burns

Details

AGLC: R v Burns [2024] NSWDC 173
Case: [2024] NSWDC 173
Decision Date: 22 March 2024

CaseChat Overview and Summary

In the matter of R v Burns, the respondent was prosecuted for engaging in sexual activity with a child over the age of 10 but under the age of 14. The case was heard in the County Court of Victoria. The court was required to determine the appropriate sentence for the respondent, taking into account the severity of the offences and the impact on the victim.

The legal issues before the court included the appropriate sentencing principles to apply to the respondent’s crimes, the impact of the offences on the victim, and the need for deterrence and denunciation. The court had to balance these considerations against the respondent’s background, including his age, previous criminal history, and any mitigating factors.

The court found that the offences were of a serious nature, involving intentional sexual touching of a child and sexual intercourse with a child over the age of 10 but under the age of 14. The court considered the impact of the offences on the victim, who had suffered significant psychological harm. The court also took into account the need for deterrence and denunciation, given the gravity of the offences. The court ultimately determined that a head sentence of 6 years with a non-parole period of 4 years was appropriate, reflecting the seriousness of the offences and the need to protect the community.

Orders

Orders of the court

Head sentence of 6 years with a non-parole period of 4 years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Burns [2024] NSWDC 173
Hearing dates:	29 February 2024
Date of orders:	22 March 2024
Decision date:	22 March 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Head sentence of 6 years with a non-parole period of 4 years.
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >10 <14 – Intentional sexual touching child >10 <16 — Intentional sexual touching child <10 — Child abuse material — Production / Dissemination / Possession. CRIME — Child sex offences — Offender was a friend of the families of the victims, regularly in attendance in the family homes — Offending conduct occurred in victim’s homes — Offender claims offending conduct occurred while he was heavily intoxicated. SENTENCING — No prior criminal history — Abuse of trust and authority.
Legislation Cited:	Children (Criminal Proceedings) Act1987 (NSW) Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Hockley v R [2023] NSWCCA 285 Lai v R [2021] NSWCCA 217 R v Barnes [2023] NSWDC 33 R v CMB [2014] NSWCCA 5 R v Duncan [2022] NSWDC 543 R v G [2008] UKHL 37; [2009] 1AC92 R v MJ [2023] NSWCCA 306 R v NC [2020] NSWDC 547 R v Olbrich [1999] HCA 54 R v PG [2020] NSWDC 144 R v Shiel [2022] NSWDC 648 R v Yates (a pseudonym) [2021] NSWDC 701
Texts Cited:	Nil
Category:	Sentence
Parties:	Crown David Andrew Burns
Representation:	Counsel: H Fitzhardinge (Crown) M Fernando (Offender) Solicitors: Director of Public Prosecutions NSW (Crown) Legal Aid Commission of NSW (Offender)
File Number(s):	2022/00368208
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants in accordance with section 15A of the Children (Criminal Proceedings) Act 1987 and section 578A of the Crimes Act 1900 (NSW).