DPP v Burke

1. The maximum penalty for sexual penetration of a child under 16, where the Court is satisfied beyond reasonable doubt that the child was under 12 years, is 25 years' imprisonment. The maximum penalty for indecent act with a child under 16 is 10 years' imprisonment.

1. I note at the outset that sentencing was adjourned for 12 months after your arraignment to allow your participation in a restorative justice program.

1. The circumstances of the offending were comprehensively outlined in the Summary of Prosecution Opening dated 20 July 2024. I shall summarise those circumstances here.

1. You were born in December 1991. Your cousin Alice Salter[2] was born in July 2001. You share a maternal grandmother.

1. When you were children, you and Alice would both spend time at your grandmother's house. There was one bedroom for the male grandchildren, 'the boys' room', and one for the female grandchildren, 'the girls' room'. Both rooms had single beds in them.

1. On an occasion in December 2006 when you were 15 and Alice was five, you were both staying overnight at your grandmother's house. Alice was sleeping in the boys' room with you, each in separate beds.

1. You turned off the light, closed the door and got into Alice's bed. You lifted the bed clothes and placed your hand inside her pyjama bottoms and underwear, rubbing her genitals with your fingers. You rubbed her clitoris and vagina, inside her labia, but did not fully insert your finger into her vagina. This is Charge 1.

1. While doing this, you grabbed Alice's left hand and placed it down the front of your pyjama pants and onto your erect penis, moving her hand up and down to masturbate you. This is Charge 2.

1. On a second occasion in late 2006 or early 2007 when you were 15-16 years of age and Alice was five, you were again both staying overnight at your grandmother's house. You told Alice to ask if she could stay in the boys' room.

1. You turned off the light and closed the bedroom door before pushing the beds together.

1. You placed your hand inside Alice's pyjama top and began rubbing her breasts. This is Charge 4. You then moved your hand down under her pyjama pants and underwear and rubbed her clitoris and vagina in a similar way to the first occasion. This is Charge 3.

1. You placed Alice's left hand down the front of your pyjama pants and onto your

penis, using her hand to masturbate yourself. This is Charge 5.

1. When the complainant was 17 years of age, she told her mother you used to touch her inappropriately when she was little. Six to eight months later, the complainant disclosed the offending to her father. On 18 July 2019 her father contacted police and was provided with information as to the process for making a complaint, which he provided to his daughter.

1. In December 2021, the complainant made a complaint to the police and you were arrested on 11 April 2022. You denied the allegations put to you during a recorded interview.

1. All child sexual offences are grave, particularly those involving penetration of very young children. The indecent act charges here are also serious in nature. What is unusual however, in a case coming before this court, is your own young age at the time which must be seen to lessen your moral culpability.

1. I note that there were two episodes of offending, there was penetration and there was a 10 year age difference between you and the victim but you were only 15‑ 16 years of age yourself.

1. There is a presumption of harm to child victims and the impact on Ms Salter is readily apparent from her statement to the court.

1. I received a Victim Impact Statement from your victim Alice Salter which eloquently detailed the impact of your offending on her.

1. Ms Salter reports a diagnosis of complex post-traumatic stress disorder, diagnosed after her most recent suicide attempt which coincided with making her report to police. She has made a number of attempts on her life over the years since your offending and has been hospitalised and unable to work for extended periods.

1. Your offending took place shortly after her younger brother died. She thought she was being punished for his death by your offending.

1. Ms Salter finds it difficult to trust others, suffers ongoing anxiety and often feels unsafe. She remains medicated and carries the scars of self-harm which make her self-conscious.

1. The impact of your offending cannot be underestimated but I must of course be mindful not to elevate this impact above other competing considerations in the sentencing synthesis.

1. You indicated a plea of guilty after a contested committal which involved the cross‑examination of your victim and various family matters, as was your right. By your plea you have however, saved the community the time and expense of running a trial. More importantly, you have spared your victim and the other witnesses the ordeal of giving evidence before a jury. As such, you have facilitated the administration of justice and you are entitled to a benefit for the utilitarian value of your plea.

1. By your plea, you have further demonstrated an acceptance of responsibility for your offending, together with remorse. This has been further demonstrated by your participation in a restorative justice program.

1. I received confirmation from Renee Handsaker from the Open Circle Restorative Justice Service that you engaged with 11 preparation sessions and one facilitated dialogue with your victim by way of participation in a restorative justice program. Unlike in other states, restorative justice sits outside the court processes in Victoria.

1. As her Honour Judge Karapanagiotidis of this court stated in DPP v Wourdol & Anor [2025] VCC 246, 'in broad terms, restorative justice is not focused on an offender achieving a benefit in the sentencing process but rather is "concerned

with the attempt to repair the harm to the victim, relationships and the community

done by the offending."'

1. The details of the program you undertook remain confidential which makes it difficult to assess your participation and the weight to be given to it. I do accept that you have demonstrated remorse and insight into your offending and that your participation in the process would have been challenging and confronting. Let it not be said, however, that the process was not challenging and confronting for your victim too. It is her willingness to participate in this process that has allowed you to undergo the program.

1. You are 34 years of age, having been born in December 1991. Your parents divorced when you were about five years old. Your father had a serious gambling habit at this time, and your family was left in a state of debt, having depleted all savings.

1. You lived with your mother in these early years however, she was working long hours as a result of financial hardship. You often ended up being cared for by your auntie or grandmother and attended after school care regularly.

1. You moved in with your father from Grade 4 onwards. You report that you always felt like a burden to your father. You have not spoken to him since the day of your arrest, and he has not offered support to you during these proceedings.

1. Your mother was diagnosed with stage 4 brain cancer in May 2025. She is seriously unwell but nevertheless has remained supportive of you. You have an older sister with whom you are not close.

1. After meeting your wife in 2016, you married and had your first child in 2021. Following your arrest, the Department of Family, Fairness and Housing ('DFFH') were notified and opened an investigation. For about four months, you were only allowed to spend time with your child when supervised by another adult. After a period of time in which no concerns were raised, DFFH closed the case.

1. You maintain the support of your wife and a few close friends but otherwise have been estranged from most of your family and family friends.

1. You commenced primary schooling in Lara and report being targeted by bullying from the outset. You then briefly attended another primary school from Years 4-6 where you had a short period of reprieve. After commencing secondary school in 2005 you were both verbally and physically bullied from Years 7-9.

1. You report at one point being punched so hard in the face that you lost vision for multiple days. You eventually told your parents and your father suggested you leave school and start a trade. You disagreed and moved in with your mother for Years 10-12. You changed schools and continued to experience minor bullying but nothing compared to previous years.

1. Once you completed Year 12, you obtained a certificate and diploma in early childhood education and worked in this sector for three years.

1. In 2016, you completed a 12-week training course and became a Protective Services Officer. Your ultimate aim was to apply for the Victorian Police Force, however, once you were charged, you lost your job.

1. You now work as a full-time warehouse administrator 40 hours a week and as a casual delivery driver 9-10 hours a week. You are also an active member and volunteer at a running group, which you report helps take away the stress and anxiety of these proceedings.

1. You do not suffer from any longstanding diagnosed mental health conditions, however your counsel raised the fact that you have experienced some mental health difficulties consequent to you being charged with this offending.

1. I received several character references which acknowledge the offending but attest to your otherwise caring and responsible nature.

1. Your case is complicated by the fact that you were a child at the time of the offending. But for that fact, I would be taking into account general deterrence, denunciation and just punishment as the primary sentencing considerations.

1. Were you being sentenced as a child, the Children Youth and Families Act 2005 would apply and the focus would be on your rehabilitation. As you are in fact being sentenced under the Sentencing Act 1991 for offences committed as a child, general deterrence retains some relevance.

1. There has, however, been a significant delay in this matter, one which has given you the opportunity to demonstrate your rehabilitation. You have not offended in any way since these offences in 2006-2007 and I take that into consideration.

1. In considering your prospects of rehabilitation, which I regard as excellent in all the circumstances of the case, I place little weight on specific deterrence. You have demonstrated a lack of reoffending over a significant period of time.

1. Both counsel agreed that yours is a unique case in terms of matters coming before this court, given the seriousness of the conduct but the young ages of both you and your victim.

1. Your counsel submitted that in all of the circumstances I should not consider a custodial sentence but should instead impose an adjourned undertaking.

1. She took me to a number of cases, namely DPP v Baker [2016] VCC 1500, R v DW (No 1) [2020] NSWDC 461, Sherritt v The Queen [2015] VSCA 1 and R v PGW [2002] QCA 462, none of which ultimately resulted in a custodial disposition.

1. The prosecutor conceded that, notwithstanding the inherent seriousness of the offending, a custodial sentence is not within range. It was submitted that a Community Correction Order with a punitive component would better reflect the seriousness of the conduct.

1. The prosecutor did not press for a conviction in all the circumstances of the case.

1. I had you assessed for a Community Correction Order. The assessor reported that you are a low risk of general reoffending and found you suitable for an order.

1. A Mental Health Advice and Response Service Assessment found you have experienced distress, stress, worry, uncertainty, social shame, physical health concerns and financial issues since being charged. It was recommended that ongoing assessment and treatment be made a condition of any order to promote your well-being. Would you please stand, Mr Burke.

1. On Charges 1, 2, 3, 4 and 5 I impose a Community Correction Order. The order will be without conviction and will run for 12 months. You are to comply with the core conditions of the order, being that:

• You must not commit another offence punishable by imprisonment during the period of the order.

• You must comply with any obligation or requirement prescribed by the regulations.

• You must report to, or receive visits from, the Secretary during the period of the order.

• You must report to the Geelong Community Correction Service within two working days of today.

• You must notify the Secretary of any change of address or employment within two clear working days after the change.

• You must not leave Victoria except with the permission of the Secretary.

• You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.

1. In addition, you are to comply with the following special condition:

• You are to undergo assessment and treatment for your mental health.

1. Do you consent to that order being made?
2. OFFENDER: Yes.
3. HER HONOUR: For completeness, as you were a child at the time of the offending, I note that there is no application for discretionary registration pursuant to the Sex Offenders Registration Act 2004.

1. Given the nature of the disposition imposed, I make no declaration pursuant to s 6AAA of the Sentencing Act 1991.

1. We will have that order prepared. Ms Cannon you can assist Mr Burke.

1. While that is being done, is there anything further, Mr Weinman?

1. MS CANNON: May I approach my client, Your Honor?

1. I am not sure if there are any press present, but if there are, this is not to be reported under Mr Burke's name, there will be a pseudonym order.