DPP v Burke [2017] VCC 629

• two charges of knowingly possessing child pornography; and

• one charge of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004.

2 As well, you pleaded guilty to four related summary offences, being:

• Charge 78, commit an indictable offence whilst on bail; and

• Charges 79 and 81, knowingly using an optical surveillance device to record visually or observe a private activity, to which you were not a party, without the express or implied consent of each party to the activity, upskirting.

4 The maximum penalties for the offences to which you have pleaded guilty are:

• Stalking, make child pornography, and knowingly possess child pornography, ten years' imprisonment;

• Access child pornography using a carriage service, and accessing

child-abuse material using a carriage service, 15 years' imprisonment;

• Loitering in a school and fail to comply with reporting obligations under the Sex Offenders Registration Act, five years' imprisonment;

• In respect to summary offences Charges 2 and 78, 30 penalty units or three months' imprisonment;

• In respect to summary offences Charges 79 and 81, 240 penalty units or two years' imprisonment.

5 In respect to Charges 9, make child pornography and Charges 13 and 15, knowingly possess child pornography, you fall to be sentenced as a serious sexual offender should you be sentenced to a term of imprisonment in respect to those charges.

6 Tendered as Exhibit A on the plea was the prosecution opening for plea of guilty, which was read aloud in court. In summary, in respect to Charges 2 and 3 in part and Charge 13, on 15 December 2015, police attended at your home and seized ten electronic devices that contained child pornography. You were arrested and interviewed under caution and charged. During the course of the interview, you made a number of significant admissions. You were bailed on 18 December 2015 with conditions.

7 On 6 May 2016, you were arrested again. You were interviewed under caution, charged and remanded in custody. Again, during the course of the interview, you made significant admissions against your interest.

8 The eight charges of stalking are founded on video recordings and pictures recorded on electrical equipment seized by police from you on 6 May 2016, which included an Apple iPhone. These images, when combined with your admissions also found Charges 9, 11 and 15 on the indictment, together with the related summary offences.

9 As a result of the warrant executed on 15 December 2015, police found ten electronic devices that contained child pornography. You had accessed child pornography on the internet from 31 May 2014 to 13 December 2015. There were a total of 7,964 child pornography files on the seized devices that fell within Categories 1 to 5, both inclusive, of the Child Exploitation Material ("CEM") analysis system, Charges 2 and 3.

10 Your method for obtaining these files was to use the programs Freenet and Frost, programs that gave you access to the dark net and the ability to encrypt files so making detection difficult. Pursuant to the provisions of the Sex Offenders Registration Act 2004, to which you were then subject, you were obliged to notify authorities that you possessed the ten electronic devices seized by police. You failed to do so, Charge 14.

11 You were bailed on 18 December 2015 with conditions that included:

(a) Not to access the internet or any online service, except at your place of employment as required for said employment, including by third party; and

(b) Notifying the informant of possession/ownership of any internet enabled device, including mobile phones, and present any such device to the informant upon request.

12 On 6 May 2016, at about 9.30 pm, you were located by police and arrested in Elwood whilst parked in a residential street. You were in possession of an Apple iPhone that was internet-enabled, Summary Charge 2. Seized by police at the time of your arrest, in addition to the iPhone, was an iPad and an external hard drive and a USB storage device.

13 You were interviewed under caution and admitted:

(a) You attended some of the locations, looked into the window and "perved" on the occupants. You would take video or "cum straight on my phone" and reasoned it was "for my own sick gratification". Question and Answer 100;

(b) You would sometimes masturbate whilst out stalking, Questions and Answers 101 to 105, and this conduct was dependent on what you could see and if you were nervous, Questions and Answers 253 to 254;

(c) Whilst you could not nominate the premises that you had attended only once, you acknowledged it would be fair to say that you had attended at premises on many occasions, Questions and Answers 157 to 166;

(d) You normally used your phone to record your stalking, Questions 167 to 170;

(e) You had been detected by victims, Questions and Answers 318 to 323;

(f) You had taken mail to identify victims and then looked them up on Facebook, Questions and Answers 349 to 366;

(g) You generally targeted pretty victims, Questions and Answers 752 to 755; and

(h) There was child exploitation material on the external hard drive found in your possession, which you had last accessed the previous day, Questions and Answers 1348 to 1358.

14 The stalking, the subject of Charges 1, 5, 6 and 7, occurred in Richmond. Charge 1 concerned a 15 year old female whose premises you attended on three occasions to take film of her while she was naked. Your video recordings also included her in various stages of undress. Included in the video of 10 August 2013, was an unknown female victim. You admitted to investigating police that you may have looked up the victims on Facebook after looking at their mail, Questions and Answers 365 to 371.

15 Charge 5 concerns similar activity conducted in respect to an adult female whose premises you attended on five occasions where you took five video recordings.

16 Charge 6 also concerned an adult female who you took five video recordings of on five different occasions. The videos depicted the victim in her bedroom dressed only in a towel, naked, and in various stages of undress.

17 Charge 7 likewise concerns an adult female. You took four videos of her while she was in her bedroom naked or in various stages of undress.

18 Charge 4 occurred in Hawthorn and concerned an unknown female victim of whom you took 103 photographs and one video recording. The video recording and photographs depict the victim naked and in various stages of undress. The photographs focus on the groin area of the victim whilst she is seated on

19 Charge 12 occurred in Elwood and culminated in your arrest on 6 May 2016. You attended at your adult female victim's home and took 110 photographs of her, together with two video recordings. Again, the photographs are of the victim lying on her bed, naked, and in various stages of undress. The victim reported that she had seen the shape of a male person at her bedroom window and also a male person standing on the opposite side of her shower window, which made her feel fearful and apprehensive about being in the house. In respect of this offending, whilst being interviewed, you admitted that you had been looking in the victim's window the night that you were arrested, that you had been to that address once or twice a week for the past six months and that your visits to that address may have been in the order of 50 occasions. See Questions and Answers 231, 1393, and 1395 to 1396.

20 Charge 11, loitering in a school, and summary Charge 79, using a surveillance device to record a private activity, concerns your attendance on the Caulfield Grammar School boarding house in St Kilda East. You took 115 photographs depicting a 17 year old female victim. You told police during interview that you could tell the victim that you photographed was under 18. See Questions and Answers 517 to 519, and you agreed that your activity constituted producing child pornography, Questions and Answers 536 to 543. You told police that you nearly got caught on the school grounds a number of times by security who detected you looking in windows and chased you away. See Questions and Answers 654 to 663, and 691 to 694.

21 Charges 8 and 10, stalking, and Charge 9, making child pornography, arise out of your attendance at an address in Burwood on five occasions. The mother of the victims, the subject of Charges 8 and 10, attended at your place of employment and you served her. You obtained her home address and personal particulars. You subsequently attended at her residence for the purposes of stalking her. However, upon your attendance at her address, you observed that she had two teenage daughters, the subjects of Charges 8 and 10. You took

a total of 544 photographs of the child victims that depicted them naked or in various stages of undress. A series of photographs taken by you on 15 December 2014, constitute child pornography. You told police on interview that you had looked up the victims on Facebook, Questions and Answers 366 to 374, and that you had sold a computer to their mother, Questions and Answers 377 to 390.

22 Analysis of the data obtained from the electrical items seized by police on 6 May 2016, identified child pornography material. You had in your possession a total of 459,743 child pornography files. There were 445,900 pictures and 5,879 video files. Each of these files were categorised to fall within CEM Categories 1 to 6, both inclusive.

23 A sample disc of material was provided to me to be viewed, which I did. The sample disc contained eight sample image files and four sample video files from each category. A description of the materials includes:

(a) Category 1, image files depicting pubescent female victims posing naked with varying degrees of depravity.

(b) Category 2, image files depicting a mixture of pre-pubescent male and female victims, either engaged in non-penetrative sexual activity with other children or committing acts of penetration with sex toys and objects.

(c) Category 3 predominantly contained toddler-aged female victims, including images of adult males straddling them and in one instance an adult male holding a female victim above his erect penis. There are images where two child victims lick the penises of adult males. One video includes an adult masturbating onto the face of his child victim.

(d) Category 4 contains images of female child victims involved in penetrative sexual activity, vaginal, anal and oral with adult males.

(e) Category 5 includes images of extreme depravity that constitutes child abuse material. Examples include a girl with cuts inflicted to her chest, children tied up whilst next to them, another child is being abused by an adult, children bound with gaffer tape and tied to chairs, an image of

a female victim who appears to be aged in her early-teens, either deceased or depicted as being deceased, topless in a coffin with her breasts exposed, while an adult male stands over her with his pants undone. The victim has what appears to be semen over her mouth. There are images of bestiality.

(f) Category 6. These are predominantly animated images of a most disturbing kind. The adult males are depicted in grotesque form, whilst the depictions of the children are disturbingly lifelike. The depths of depravity into which the mind of the author of these animated images descended beggar's belief.

24 In respect to Summary Charge 78, commit and indictable offence whilst on bail, this relates to Charges 12 and 15 on the indictment.

25 Mr Burke, you are 39 years of age and between May 2000 and January 2015, you have accumulated 22 convictions or findings of guilt from eight court appearances. Importantly, you have convictions for unlawfully on the premises and stalking. You have two prior convictions for knowingly possess child pornography and one conviction for making or producing child pornography, for which you were sentenced to terms of imprisonment. As at 16 September 2009, you were subject to the provisions of the Sex Offenders Registration Act 2004 for a period of 15 years.

26 Tendered as Exhibit B on the plea was the victim impact statement of one of the women whom you had stalked. She has experienced anxiety as a result of your conduct. She feels that she is being watched. She experiences nightmares as a consequence of your behaviour towards her. She feels "unclean". Your conduct has had a profound adverse effect on her.

27 Ms Parsons' solicitor, who appeared on your behalf and who conducted both

a helpful and thorough plea on your behalf, sensibly conceded that your offending was serious and was committed over a significant period of time and was deserving of an immediate term of imprisonment, which included the imposition of a non-parole period. She acknowledged that there were features of your offending that impacted directly upon sentence, being, the volume and range of the child pornography; the offending against teenage girls and adult women in the privacy of their own homes; your offending continued whilst on bail; and your offending continued you being subject to the provision of the Sex Offenders Registration Act. Finally, Ms Parsons acknowledged that you had

28 However, Ms Parsons emphasised the significance of your admissions to the police, your early plea of guilty and the consequences that flow to you from that early plea and that there was evidence that you were remorseful for your conduct.

29 Tendered as Exhibit 2 on the plea was the report of Dr Aaron Cunningham, psychologist, dated 6 April 2017. This report was relied on in respect to your personal history, as well as an analysis of psychometric testing conducted by Dr Cunningham and his opinion.

30 You are 39 years of age. You were raised in Bendigo by your adoptive parents and you are an only child. Your mother worked within the home and your father was a policeman. You described your father as caring and your childhood as stable, being raised in a small town. You told Dr Cunningham that you were sexually abused by a local Anglican minister when you were aged between 12 and 14 years. You told Dr Cunningham that you were too ashamed and embarrassed to tell your parents, as the minister was a family friend.

31 You left home at age of 18 and came to live in Melbourne.

32 You attended the Rochester Primary School and Rochester Secondary School, completing your Year 12. Dr Cunningham noted that you had behavioural troubles at school, but did not descend into particularity as to what they were. You informed Dr Cunningham that you wanted to do a trade. However, you completed a degree in Recreation Sports Management at Victoria University. Thereafter you worked as a sales representative for Telstra for five or six years. You worked in a factory in Rochester for a time and then for an IT company in sales for approximately three years. You were working in computer sales at the time of your arrest.

33 Whilst you reported no drug abuse, you reported to Dr Cunningham significant alcohol abuse, in that you said that you became intoxicated three to four times per week. This has been a continuing pattern in your life for some five to ten years.

34 Dr Cunningham recounted that you informed him that you had attempted

self-harm on several occasions and a suicide attempt in 2009. You informed Dr Cunningham that you felt depressed because you continued to disappoint the people that you love, particularly your mother. You described your life as

35 Dr Cunningham opined that upon examination, there was no indication of thought disorder or psychosis. He further noted that you had engaged with the sex offender program in 2003 and 2004. This appears to have had little or no effect on you.

36 You suffer from no intellectual disability and having had administered to you the Risk for Sexual Violence Protocol ("RSVP") by Dr Cunningham, he opined that you present as a high risk of sexual re-offending. This is unsurprising, as you told Dr Cunningham that you were addicted to internet pornography; that pornography was a fantasy escape for you; further, that you had difficulty empathising with your victims because the victims appeared to you to be merely images on a computer screen, rather than persons.

37 You have had a number of appropriate sexual relationships and indeed were in such a relationship at the time of your offending.

38 In summary, the only relevant psychological material that arises from Dr Cunningham's report is that you are subject to a persistent depressive disorder.

39 You are supported by your mother and your aunt, who regularly visit you in prison.

40 It must never be forgotten that every child who appears within an image of child pornography is a victim. Possessing and making child pornography are not victimless crimes. The same can be said for accessing child pornography or accessing child abuse material using a carriage service. Conduct of this kind calls for condign punishment. You are an appropriate vehicle for the application of general and specific deterrence. The community must be protected from you. The principles of just punishment and public denunciation must play

a prominent role in the exercise of my sentencing discretion.

41 However, you have made significant admissions to the police upon interview. You pleaded guilty at the earliest opportunity and you are entitled to the benefits that flow to you, being that it is some evidence of your remorse and that it has utilitarian benefit. You have limited insight into your offending, although you appear to be sorry for it because of its impact upon on those whom you love. To this extent you are remorseful, but it is remorse of a limited kind.

42 I regard your prospects for rehabilitation as bleak.

44 By these sentences, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to the protection of the community. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce sentences which reflect and promote the purpose of sentencing in a manner appropriate to you, I sentence you as follows:

45 On the related summary offences, I sentence you as follows:

46 I order that three months of the sentences imposed on Charges 1, 4, 5, 6, 7, 8, 10, 11, 12 and 14, together with six months of the sentences imposed on Charges 9 and 13, be served cumulatively upon the sentence imposed upon Charge 15.

47 In respect to the State offences, this results in a total effective sentence of five years' and six months' imprisonment and I fix the period of four years' imprisonment as the period that you must serve before you will become eligible for parole in respect to the State offences.

48 I order that the sentence imposed on Charge 2 commence at the expiration of the State non-parole period.

49 I order that the sentence imposed on Charge 3 commence one year after the commencement of the sentence imposed on Charge 2.

50 The result in respect of the Commonwealth offences is a total effective sentence of four years' imprisonment and I fix a non-parole period of two years' imprisonment, which I order to commence at the expiration of the State

51 The effect of these sentences is to arrive at an overall total effective sentence of eight years' imprisonment, with a non-parole period of six years' imprisonment.

52 I declare that in respect to Charges 9, 13 and 15, that you are sentenced as

a serious offender and I direct that that fact of you being so sentenced is to be entered in the records of the court.

53 I declare that you have spent 377 days by way of presentence detention, not including today.

54 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to 11 years' imprisonment with a

55 Pursuant to the provisions of the Sex Offenders Registration Act 2004, you are registrable for life.

59 HIS HONOUR: Would you remove the prisoner please. I beg your pardon.

I am sorry, Mr Prison Officer, there is one more matter that I omitted to deal with.

60 Mr Burke, my associate will come down with the necessary notices under the Sex Offenders Registration Act 2004. You have seen these documents of this kind before. I would ask you to sign them. As you know, it is an acknowledgement of the receipt of the documents.

62 HIS HONOUR: Thanks. You may remove the prisoner. Thank you, Mr Burke. I would like to thank counsel for their assistance in this matter, particularly in respect to the revision of the sentence. 10.30 Monday morning.