Burgess v The Queen [2017] VSCA 59

Indecent assault [Crimes Act 1958 (Vic) s 44(1) as amended by the Crimes (Sexual Offences) Act 1980]

[s 44(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980]

Gross indecency in the presence of a person under the age of 16 [Crimes Act 1958 (Vic) s 50(1) as amended by the Crimes (Sexual Offences) Act 1980]

3 years imprisonment (care, supervision, authority) [s50(2)(a) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980]

Sexual penetration of a child under the age of 10 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1980]

[s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980]

Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1991]

[s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991]

Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1991]

[s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991]

Sexual penetration of a child under the age of 16 [Crimes Act 1958 (Vic) s 45(1) as amended by the Crimes (Amendment) Act 2000]

15 years imprisonment (care, supervision, authority) [s 45(2)(b) Crimes Act 1958 as amended by the Crimes Amendment Act 2000]

Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1991]

[s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991]

Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1) as amended by the Crimes (Sexual Offences) Act 1991]

[s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991]

Sexual penetration of a child under the age of 16 [Crimes Act 1958 (Vic) s 45(1) as amended by the Crimes (Amendment) Act 2000]

15 years imprisonment (care, supervision, authority) [s 45(2)(b) Crimes Act 1958 as amended by the Crimes Amendment Act 2000]

Sexual penetration of a child under the age of 16 [Crimes Act 1958 (Vic) s 45(1) as amended by the Crimes (Amendment) Act 2000]

15 years imprisonment (care, supervision, authority) [s 45(2)(b) Crimes Act 1958 as amended by the Crimes Amendment Act 2000]

Pre-Sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991:

S6AAA Statement: 10 years and 6 months' imprisonment with a non-parole period of 8 years

Other relevant orders: Sentenced as a serious sexual offender on charges 3, 5, 6, 7, 8, 9, 10 & 11; Forensic Sample Order pursuant to s 464ZF of the Crimes Act 1958; sex offender registration for life

2 The applicant seeks leave to appeal against his sentence on the grounds that it is manifestly excessive and that the judge failed to consider current sentencing practice. In respect of the manifest excess ground, the applicant contends first, that the sentence imposed is crushing; second, that the principle of totality is infringed; third, that an excessive non-parole period was imposed.[1]

The complainant and the applicant meet[2]

3 In 1989, when the complainant was almost ten years of age, he was placed in the care of foster parents. In 1992, he was adopted by his foster parents. The applicant, his wife and their three children lived on a 20 acre property next door to the complainant and his foster family. The applicant's property had a house and various sheds on it.

4 The complainant developed a close friendship with the applicant and spent a lot of time with the applicant at his home. The applicant frequently drove the complainant to and from school, and to other places. From time to time, the complainant visited the applicant at his workplace.

5 The charges on indictment arose from a number of sexual acts performed by the applicant (who was aged in his early to mid-50s at the time) that the complainant could specifically remember from his childhood. There were also a number of uncharged acts.

6 At some stage between 1 February 1989 and 29 March 1990, the complainant stayed the night at the applicant's home. After the applicant's wife and the complainant had gone to bed for the night, the applicant entered the room the complainant was sleeping in. The applicant ran his hands over the complainant's body, fondled the complainant's penis under his pyjama pants and masturbated him (Charge 1 - indecent assault).

7 On another occasion between 1 February 1989 and 29 March 1989, the applicant showed the complainant some pornographic magazines in a shed at the applicant's home. The applicant and the complainant pulled down their pants exposing their penises then masturbated their own penises in each other's presence (Charge 2 - gross indecency with a person under 16). The applicant then sucked the complainant's penis (Charge 3 - sexual penetration of a person under 10). The applicant by his plea accepted that these offences took place when the complainant was under his care, supervision or authority.

8 At some point between 1 November 1992 and 30 March 1993, the applicant took the complainant to his office at his workplace. The complainant was playing a golf computer game when the applicant brought out a TV on a trolley and started playing a pornographic video. As the video was playing, the applicant put his hand down the complainant's pants and masturbated the complainant's penis (Charge 5 - indecent act with a child under 16).

9 On another occasion between 1 November 1992 and 30 March 1993, the complainant was at the applicant's home. The applicant showed the complainant some pornographic magazines and they played 'strip pool' together. This involved each of them removing an item of clothing when the other pocketed a ball (Charge 6 - indecent act with a child under 16).

10 After playing strip pool, the applicant bent the complainant over and the applicant partially inserted his penis into the complainant's anus (Charge 7 - sexual penetration of a child under 16). After this, the applicant took the complainant to the bathroom, laid him on his back in the shower and the applicant urinated over the complainant (Charge 8 - indecent act with a child under 16). Immediately after this, the applicant made the complainant wash himself in the shower, and then took the complainant into his bedroom. Both the complainant and the applicant were naked. The applicant then took a photograph of the complainant with a polaroid camera (Charge 9 - indecent act with a child under 16). The applicant then sucked the complainant's erect penis (Charge 10 - sexual penetration of a child under 16). Next, the applicant straddled the complainant who was lying on his back. The applicant lowered his anus on to the complainant's penis, and caused it to penetrate the applicant's anus. The complainant then ejaculated into the applicant's anus (Charge 11 - sexual penetration of a child under 16).

11 At the time of these incidents, the complainant was under the applicant's care, supervision and authority.

12 The applicant regularly gave the complainant a lift to scouts or venturers until the complainant was about 14. The complainant recalled that on these occasions, the applicant would park his vehicle off the side of the road near a bridge and ask the complainant to perform oral sex or masturbate the applicant's penis. The applicant would also perform oral sex on the complainant or masturbate the complainant's penis in return for favours, including the provision of pornographic material. The applicant would also give the complainant oral sex or masturbate his penis.

13 The complainant was unable to distinguish between various instances at the bridge because of the repetitive nature of what was happening and how often it happened. The complainant did recall the last occasion when he refused the applicant's request for oral sex. The incidents occurred when the complainant was about 14.

14 The complainant last saw the applicant when he was about 16 or 17.

The complaint, plea of guilty and applicant's criminal record

15 The complainant did not disclose the offending for a number of years although ultimately he told a number of people, including his counsellor. After the counsellor contacted the police, they took a statement from the complainant in the second half of 2013.

16 The police interviewed the applicant in January 2014. He denied sexually abusing the complainant. The applicant subsequently contacted police to say that he had remembered further things. They took a further statement from him in March 2014. On this occasion, the applicant told the police that he remembered an occasion in August 1997 when the complainant wanted to have anal sex with him. At that time, the complainant would have been 18. The applicant told police that he let the complainant penetrate his anus 'a little bit' and that it felt 'horrible.'

17 Following a contested committal at which the complainant was cross-examined, the matter was initially listed for trial on 11 May 2015. The trial was eventually re-listed for trial in the June 2016 sittings. Causes for this delay included the raising of an issue about whether the applicant was fit to enter a plea, a change of practitioners acting for the applicant and the matter being unable to be reached during earlier sittings. The fitness to plead issue was resolved in March 2016 when two medical reports concluded that the applicant was fit to plead, though he would need some assistance to manage the stress of the legal process.

18 The applicant was arraigned on 28 June 2016 and pleaded guilty to all charges relevant to this application for leave to appeal.[3]

19 The applicant did not have a prior criminal history. However, he has relevant subsequent convictions for two charges of an indecent act with a child under 16, relating to offending against a 14 year old male relative in 2011 and against a 15 year old male relative in 2013. The applicant was sentenced in 2015 to an $8,000 fine for these subsequent offences and a sex offender registration order for 15 years was made.

20 The sentencing judge described the offences.[5] He noted that in respect of charges 6 to 11, the complainant was under the applicant's care, supervision or authority and they occurred in the one course of conduct.[6]

21 The judge noted that the applicant was 82 and that he had been in his early to mid-50s when the offences were committed.[7] The judge also noted that at the time the offences were committed against him, the complainant was a 'young, sexually innocent, male child' and that he had endured the consequences of the applicant's crimes for 25 years without the applicant being called to account for that conduct.[8] The judge referred to the complainant's victim impact statement and the effect of the crimes on him including feelings of shame, distrust of others, heightened anxiety and difficulty forming relationships.[9] The judge contrasted this with the fact that the applicant had been able to move on with his life during the long years since the crimes were committed.[10]

22 The judge observed that the applicant had pleaded guilty shortly before the trial was due to begin and that he had no prior convictions.[11] The judge then turned to consider the subsequent offending by the applicant. He noted that they were relatively recent events. The judge noted the fictitious allegation made by the applicant in his interview with police that he had consensual sexual activity with the complainant when he was 18. Taking these matters into account, the judge concluded that the applicant had not been burdened with guilt associated with his offending or its effect on the complainant nor that he had any real remorse for that offending.[12]

23 The judge described the applicant's background. He had a normal upbringing and had trained and been employed as a qualified engineer before retiring when he was about 60. Although now estranged from them because of his subsequent offending, the applicant was married with adult children. He had the continued support of his sister-in-law and brother-in-law. The judge described the applicant's health as reasonable having regard to his age. He noted the expert evidence that the applicant had a fluctuating cognitive state, characteristic with the onset of Alzheimer's disorder, but that the expert's testing revealed the applicant to be functioning at the average range for his age.[13]

24 The judge then mentioned some sentencing considerations, including denunciation and the need to fix a sentence which is just in all the circumstances.[14] The judge noted that the applicant's plea of guilty entitled the applicant to some discount in sentence because it had some social utility and spared the complainant from giving further evidence.[15]

25 Having regard to his subsequent offending and age at that time, the judge was satisfied that the applicant had little prospect of being rehabilitated.[16] The judge stated that the need for specific deterrence and the need to protect the community only assumed modest relevance given the applicant's age and that a prison term would be imposed.[17] In contrast, general deterrence remained important with the judge stating that abhorrent criminal activity of the type perpetrated by the applicant, visited upon young victims, will receive appropriate punishment, whenever it comes to light.[18]

26 The judge said that he took the applicant's age into account in fixing a sentence. He was satisfied that a significant custodial sentence should be imposed because of the nature of the offending which involved the applicant taking advantage of an innocent, vulnerable young child who came to the applicant seeking company shortly after moving into his foster home, the self-gratification involved in the offending without consideration of the consequences for the complainant, the length of time over which the offences were committed and the serious and long term effect of the offending upon the complainant.[19] The judge said that the offending was predatory in nature and involved taking advantage of the trust which the complainant's parents placed in him by allowing their child to go to the applicant's home and remain with him unsupervised.[20]

27 The judge accepted that because of his age and lack of experience in the prison system, a custodial sentence would expose the applicant to significant hardship.[21] The judge also noted and accepted the prosecution's position that a disproportionate sentence should not be imposed.[22]

28 Next the judge recorded that, other than the maximum penalties, he had no guidance as to sentencing practices at the time that the offences were committed. He noted that the maximum penalties were either marginally less or identical to those currently in force.[23] Finally, the judge noted that he was required to sentence the applicant as a serious sexual offender in respect of charges 3 to 11. Taking into account that the sentence must be just and appropriate to the totality of the offending, the judge ordered moderate cumulation of the individual sentences. The judge then sentenced the applicant as set out above.

Is the sentence manifestly excessive? (Ground 1)

29 To succeed, the applicant must establish that the sentence that was imposed was wholly outside the range of sentencing options available to the judge.

30 The applicant says that given his advanced age, the sentence imposed is crushing; that is the length of the sentence destroys any reasonable expectation of useful life after release.[24] He relies on Australian Bureau of Statistics ('ABS') data in respect of the life expectancy of Victorian males at the ages of 82 (which is how old he was when sentenced) and 88 (which would be his age if released at the earliest opportunity on parole). Extrapolating from that, he submits that the non-parole period represents 73 per cent of his remaining life expectancy with the total effective sentence representing 108 per cent of his remaining life expectancy.

31 These submissions must be rejected. In the context of sentencing, statistics of the type relied upon by the applicant do not meaningfully assist. For one thing, they are general in nature and do not differentiate between individuals. They are not a substitute for evidence about the health and consequent life expectancy of a particular person who is to be sentenced. As a matter of common experience, men in their eighties are approaching the end of their life span. Consequently, that is a matter that helps to inform what length of sentence might be imposed. It may (but not necessarily must) result in the imposition of a shorter sentence than may otherwise have been the case. The ABS statistics do not take the matter any further.

32 Here, the judge did take into account the applicant's old age. He properly factored that into consideration along with other sentencing considerations such as denunciation and the gravity of the offending. Here, the judge's finding (which has not been challenged) is that the applicant's health was reasonable for his age. This was a relevant consideration.

33 True it is that the sentence must be approached on the basis that the whole term of imprisonment will be served. If that happens, then the applicant would be in his early 90s when released and the possibility that he may die in prison is a weighty consideration. Nevertheless, depending on the circumstances, it may be appropriate to impose a term which has the effect that all of the offender's remaining years may well be spent in prison.[25] Such is the case here. Put simply, the applicant has not demonstrated that when all of the sentencing factors are taken into account, including the egregious nature of the offending, the sentence is manifestly excessive given his advanced age.

34 The applicant contends that the sentence imposed on him offends the principle of totality. His first basis for this contention is that, in his view, the sentence is crushing. For the reasons given, this must be rejected.

35 The second limb of the applicant's argument based on totality is that the sentences imposed evidence that the judge applied an artificial and mechanical approach to sentencing. In particular, the applicant focusses on the strip pool incident. He submits that it was necessary for the judge to discriminate between the separate instances of offending on this occasion and sentence accordingly. Instead he says that the judge treated each offence alike - each charge of committing an indecent act with a child under 16 received a sentence of 12 months' imprisonment; each charge of sexual penetration of a child received a sentence of four years. He emphasised the point by reference to the orders for cumulation. For example, in respect of the strip pool incident, the judge cumulated portions of the penetration offences but not any of the indecent acts.

36 The judge described each offence and distinguished between them. He referred to the need to impose a total sentence that was just and appropriate. The base sentence on Charge 3 was the first offence of sexual penetration. There is nothing unusual in that sentence being fixed as the base. The judge did impose the same sentence of four years in respect of each offence of sexual penetration, but he distinguished between them when it came to cumulation (two years cumulation being imposed in respect of Charge 10). When regard is had to this, that there were four charged incidents, that the applicant fell to be sentenced as a serious sexual offender on Charges 3 and 5 to 11, that other than in respect of Charge 1, no cumulation was ordered in respect of the gross indecency and indecent act offences and that the applicant was elderly at the time of sentence, there is no discernible error in the judge's approach.

37 In a related submission, the applicant contends that the non-parole period was excessive given his age, physical frailty, estrangement from his immediate family and his lesser risk to the community. The non-parole period is 72 per cent of the total sentence. As noted above, the judge found that the applicant was in reasonable health for his age. The judge did not make any finding that the applicant was frail. The judge took into account that the need to protect the community was only of moderate relevance. He referred to the applicant's estrangement from his immediate family but also mentioned the continuing support from extended family members. His finding that the applicant had little prospect of rehabilitation was well founded. Although, as the applicant contends, this is not a case where there was evidence of failed attempts at rehabilitation, the fact that the applicant continued to offend in recent years suggests that his prospects are not good. This is even more so given the lack of remorse on the part of the applicant and the fabrication about consensual sexual activity with the complainant when he was 18. The applicant was not entitled to the full discount which commonly follows a plea of guilty. Taking all of this into account, the non-parole period that the judge set was open to him as a sentencing option.

38 In conclusion, ground 1 must be rejected. The sentence imposed was not manifestly excessive. The sentence was open to the judge to impose.

Did the judge fail to consider current sentencing practices? (Ground 2)

39 The applicant submits that the judge's reference to sentencing practice at the time of offending was in error. So he says, the judge did not have (but should have had) regard to current sentencing practice. He referred to sentencing statistics which might have assisted the judge and to the fact that the judge had not requested the parties provide statistics or comparable cases. He submits that the sentencing statistics show that his Honour imposed sentences that were near the median.

40 As has been said on many occasions, sentencing statistics have their limitations, including that the circumstances of the offender and the offence are not discernible. Here, the fact that some of the sentences imposed were close to the median sentence and that others were greater than it does not immediately suggest that there is anything wrong with the sentences imposed, nor that the judge did not have regard to current sentencing practice. Indeed, the applicant accepts that, apart from the sentences in respect of Charges 7, 10 and 11, there is nothing exceptional in the sentences imposed on all of the other charges. In respect of Charges 7, 10 and 11 (sexual penetration of a child under 16), the judge imposed a sentence for each of four years. The applicant suggested that the median sentence for these offences was two years. However, as the Crown pointed out, the relevant sentencing statistics for sexual penetration of a child under care disclose that the median sentence is three years.[26] That difference is not demonstrative of error on the part of the judge, particularly when regard is had to the limitations mentioned in using statistics.

41 It is difficult to identify truly comparable cases. The applicant did not draw any to the sentencing judge's or this Court's attention.

42 The sentences imposed by the judge do not of themselves suggest that the judge failed to take into account all relevant sentencing considerations, including current sentencing practice.

44 The applicant has not demonstrated that the judge failed to consider all of the matters relevant to his sentencing task. Indeed, he gave each the weight that he thought it deserved. The sentence which resulted from this process does not disclose any error on his part.

45 The application for leave to appeal should be refused.

[1] On the hearing of the application for leave, the applicant's counsel made it clear that these matters were not relied upon as specific errors. Rather, when regard is had to those matters together, the applicant says that the sentence is shown to be manifestly excessive. In his written case, the applicant also contended that the sentencing judge treated elements of the offences as matters of aggravation. He abandoned that point on the hearing of the application for leave to appeal.

[2] The plea proceeded on the basis of the Summary of Prosecution Opening and these facts are predominantly taken from it.

[3] The applicant did not plead guilty to charge 4 - sexual penetration of a child aged between 10 and 16. That charge was an alternative to charge 3.

[4] DPP v Harold Edward Burgess (Unreported, County Court of Victoria, Judge Saccardo, 14 July 2016) ('Reasons').

[24] R v Yates [1985] VicRp 3; [1985] VR 41, 48.

[25] R v RLP [2009] VSCA 271; (2009) 213 A Crim R 461, 476 [39].

[26] Sentencing Advisory Council's Sentencing Snapshot No 182, "Sexual Penetration with a child under care," 3.