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. She described that the offender and other adults were out the back of the house drinking.
"Stephanie" was asleep in a bedroom in the house when the offender came into the room. She pretended to be asleep. She was lying on her side and the offender pulled her onto her back. He lifted the bed clothes and pulled down her underpants. The offender then inserted his finger into her vagina and moved his finger in and out.
This act of sexual intercourse is a contravention of s 66C(1) of the Crimes Act 1900. Sexual intercourse with a child between the ages of 10 and 14 years carries a maximum penalty of 16 years imprisonment. There is a standard non-parole period of 7 years.
The offender then pulled the child's nightie up and started to touch her breasts. Stephanie pretended that she was waking up and the offender pulled her nightie down and pulled the bed clothes back up over her. He then walked out of the bedroom.
A short while later he returned to the room and Stephanie asked: "What are you doing?". The offender responded: "I heard a noise". He then walked out of the room.
The next substantive offence (sequence 4) occurred when the victim, "Stephanie", was either 12 or 13 years of age. The offence is alleged to have occurred during 2021. It is likely that the child was then in Year 7, namely her first year at high school.
"Stephanie" described an occasion when the offender and other members of the household had gone out for the evening. The children of the house remained at home with another adult as their babysitter. All of the children had gone to bed by the time the offender and the others returned home.
Sometime after returning home the offender came into the bedroom where "Stephanie" was lying in bed. In a similar action to the first offence, he pulled down her underpants and inserted his finger into her vagina and moved his finger in and out.
This is the second substantive offence with respect to which he has pleaded guilty. It is similarly an offence contrary to s 66C(1) of the Crimes Act 1900.
The offender then touched "Stephanie's" breasts. She pretended to wake up and said: "What are you doing?" The offender said: "I just came in to tuck you in." "Stephanie" asked: "Why are my underpants down?". The offender said: "I don't know, I was trying to pull them up because I think you might have pulled them down while you were asleep."
Later that same year, in approximately November 2021, "Stephanie" was in the top bunk of a bunk bed. The offender came into the room and asked for her Snapchat login. He then left the room. He subsequently returned and had a conversation with "Stephanie".
During this conversation, he pulled the top of her nightie away and exposed her breasts. He poked her breast with his finger. This incident is being charged as Sequence 6 with respect to the offences against "Stephanie". The action of intentionally sexually touching a child between the ages of 10 and 16 years is an offence contrary to s 66DB(a) of the Crimes Act 1900. It carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period.
Following the offender's arrest on 6 December 2022, police found a number of videos and still images on his mobile phone. These images, which the metadata indicated had been taken on 3 October 2021 and on 7 November 2021, were images of "Stephanie" consistent with some of the incidents which she had described to police.
The images on 3 October 2021 were consistent with having been taken through "Stephanie's" bedroom window. The photos were of her in her underpants with her breasts exposed. She had recounted to police an occasion when she had heard a noise outside her bedroom window during which, when she looked up, she saw the offender's phone at the window.
She had then had a shower and was getting dressed and putting her underwear on. The images on the offender's phone were consistent with this incident.
Other images on his phone, including a video, were consistent with the occasion which she had described as having occurred when she was lying on the top bunk in November 2021.
The two separate occasions on which he had photographed and videoed "Stephanie" have been rolled into a single offence of using a child under the age of 14 years for the production of child abuse material (sequence 7). Such offending contravenes s 91G(1)(a) of the Crimes Act 1900 and carries a maximum penalty of 14 years imprisonment. There is a standard non-parole period of 6 years.
"Stephanie" had a sister, "Louise". On an occasion when "Louise" recalled that she was either 8 or 9, the offender was visiting the house where she and "Stephanie" lived. As on other occasions the offender was drinking with other occupants of the house. "Louise" fell asleep on a lounge in the loungeroom and woke up when the offender was touching her breasts. She told him to stop and went back to sleep. He subsequently did the same thing on two other occasions that night.
A two-second video consistent with the offender's actions in lifting the child's top together with still photos was subsequently found on his mobile phone. The metadata of these images place them on a precise date approximately two and a half weeks before she turned 10 years of age.
A single substantive offence relating to "Louise" of intentionally sexually touching a child under the age of 10 has been preferred with respect to this incident. Such an offence contravenes s 66DA(a) of the Crimes Act 1900 and carries a maximum penalty of 16 years imprisonment. A standard non-parole period is specified of 8 years. This offence is sequence 3 with respect to "Louise".
A separate charge of using a child under the age of 14 years for the production of child abuse material contrary to s 91G(1)(a) of the Crimes Act 1900 has been placed on a Form 1 to be taken into account in sentencing for sequence 3.
The videos and still images recovered from the offender's mobile phone led to the identification of a third victim.
A video which had been taken in May 2021 was 7-seconds in length. It recorded the offender pulling down the pants and underpants of "Georgina", a child of 7 years of age. The video recording showed the offender touching the child's vulva with his finger.
Sequence 15 (H410749994 relating to "Georgina" and also to "unidentified" children) charged the offender with intentionally sexually touching a child under the age of 10, namely 7 years of age. As already indicated, such an offence contravenes s 66DA(a) of the Crimes Act 1900 and carries a maximum penalty of 16 years imprisonment with a standard non-parole period of 8 years.
The photographs and video relating to this incident were included in a total of 3 videos and a number of still images of "Georgina" which were located on the offender's mobile phone.
In addition to the 7-second video taken in May 2021, there was a 3-second video with the child's vulva exposed which had been recorded in November 2021, and a 6-second video which had been taken in December 2021 depicting "Georgina" naked in the shower. These three recorded videos gave rise to a of using a child under 14 to produce child abuse material.
The rolled-up charge related to the three occasions on which the identified child "Georgina" had been used to produce such material. This was charged (sequence 2) as a substantive offence contrary to s 91G(1)(a) of the Crimes Act 1900 carrying a maximum penalty of 14 years together with a standard non-parole period of 6 years.
The remaining four substantive charges in respect of which pleas of guilty have been entered are described in the Agreed Facts as relating to "unidentified children".
The examination of his phone had revealed additional videos and images described as being of "unidentified children". Four videos and 10 still images are relied upon in support of a further count of the use of a child under 14 to produce child abuse material (sequence 6). This is a further contravention of s 91G(1)(a) of the Crimes Act 1900. The charge is, effectively, a rolled-up charge of using a child, "or children", for the production of child abuse material.
The description of the videos set out in the Agreed Facts was such as to cause the court to invite further submissions from the parties with respect to the conclusions which it was suggested the Court should draw.
The offender had a one-second video on his phone which he accessed on 2 March 2021. In that video the offender touched the vulva of a child who was under the age of 10. There were three still images taken from the video (H410749994 seq 16 - sexual touching child under 10).
The offender had a one-second video on his phone which he accessed on 11 March 2021. The video depicts a child under the age of 14. The offender is described as pulling the shirt of the child out and videoing the child's breasts. There were two still images taken from the video.
The offender had a further one-second video on his phone which he accessed on 11 March 2021. The video depicts a child under the age of 14, who is watching an iPad in a green coloured case. The offender pulls the shirt of the child out and videos the child's breast.
The offender had a further one-second video on his phone which he accessed on his phone on 3 October 2021. The video is described as depicting the offender touching the side of the vulva of a child under the age of 16 years (H410749994 seq 17 - sexual touching child between 10 and 16 years).
The offender also had an image on his phone dated 21 February 2022 which depicted a child under the age of 14 showering in the bathroom.
The offender had two images of a child under 14 getting dressed taken through a bathroom window on his phone. In one of the images the child's vulva is exposed. The images were taken on 14 October 2021.
As is clear from the Agreed Facts, the touching of the vulva of a child under 10 in paragraph 23 of the Agreed Facts gives rise to Sequence 16, a further offence under s 66DA(a) of the Crimes Act. Paragraph 26 gives rise to the offence charged in Sequence 17, a further offence under s 66DB(a) of the Crimes Act.
The concern arising from the description in the Agreed Facts was the purported length of the respective videos, namely one-second, and the narrative description of the actions said to be depicted.
By way of example, and to make the point, as set out in paragraph 25 of the Agreed Facts, a one-second video is said to depict "a child under the age of 14 who is watching an iPad in a green coloured case. The offender pulls the shirt of the child out and videos the child's breasts."
In addition to the query, which was raised during the sentence submissions, of such actions all being depicted in a one-second video, each of the three one-second videos was said to have resulted in three images from one and two images from each of the others, notwithstanding the duration of the video being said to be only one-second.
The matter assumed some significance as the Crown's submission was that all of the offending conduct involved five separate victims, it being contended by the Crown that the additional videos related to two children, not being any of the identified children to whom I have already made reference.
A larger number of children is clearly a matter of aggravation with regard to the offending conduct (see R v Olbrich [1999] HCA 54).
Following the receipt of both written and oral submissions during the sittings in Taree, the parties were invited to check the described length of the video clips, and also the description of the actions said to be depicted, and to submit further written submissions relating to the number of victims.
In additional written submissions the Crown confirmed the description of the videos as set out in the Agreed Facts and submitted that the court would be satisfied beyond reasonable doubt that there were five victims of the sexual offending, namely the three identified victims and the child subject to sequence 16 and the child subject to sequence 17.
No submission was made with respect to the question of whether the children in the videos of 11 March 2021, 14 October 2021 and 21 February 2022 were with the same or different children than depicted in the other recorded videos.
Counsel for the offender, Ms Fernando, in her additional written submissions confirmed that the duration of the video recording as set out in the Agreed Facts was consistent with the evidence. In Ms Fernando's submission, the evidence with respect to a further two victims was "too vague" for the court to be satisfied beyond reasonable doubt that these were different and additional victims. Ms Fernando suggested that the court could not make a determination as to whether one or both of the "unidentified victims" was in fact not depicting part of the body of one of the already identified victims. Similarly, one could not be certain whether there were one or two additional victims.
In circumstances where the court has not received or viewed the one-second video clips, the court simply cannot be satisfied beyond reasonable doubt as to whether the children depicted, part of whose bodies has been recorded in the videos and still photographs, are the same, or different from any of the identified victims.
Accordingly, on the question of how many different child victims were involved, the court can only be satisfied beyond reasonable doubt of the three identified victims.
The last substantive offence for sentence relates to a number of videos and images which were located by police on the offender's phone. There were 13 videos and 106 still images. I am not certain as to how many of those relate to the earlier offending. The Agreed Facts do not state how long the videos were nor how many of the images were duplicate files. The Agreed Facts do state that some of them were duplicates. The images appear to have been produced by the child depicted in the image or the video. There is no evidence whether they are downloaded from pornography sites or otherwise.
The possession of child abuse material constitutes an offence against section 91H(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period. This offending was charged as sequence 13.
[2]
OBJECTIVE SERIOUSNESS
Both the Crown and the Defence have made submissions with respect to each of the substantive offences regarding where they should appropriately be placed in an assessment of objective seriousness. There is, essentially, no real difference between the parties with respect to the level of objective seriousness of each offence.
The respective submissions were as follows:
[3]
Offending against "Stephanie"
1. Seq 1: sexual intercourse child 10 - 14.
1. Defence: at the bottom of the mid-range.
2. Crown: just below mid-range.
1. Seq 4: sexual intercourse child 10 - 14.
1. Defence: bottom of the mid-range.
2. Crown: just below mid-range.
1. Seq 6: intentionally sexually touch child 10 - 16.
1. Defence: below mid-range.
2. Crown: between low and mid-range.
1. Seq 7: use child under 14 for child abuse material.
1. Defence: below mid-range.
2. Crown: below midrange more towards lower end of range.
Offending against "Louise"
1. Seq 3: sexual touching child under 10.
1. Defence: below mid-range.
2. Crown: below mid-range.
Offending against "Georgina"
1. Seq 2: use child under 14 for child abuse material
1. Defence: just below the mid-range.
2. Crown: just below the mid-range.
1. Seq 15: sexually touching child under 10.
1. Defence: lower end of mid-range.
2. Crown: lower end of mid-range.
Offending against unidentified children
1. Seq 6: use child under 14.
1. Defence: below mid-range.
2. Crown: below mid-range.
1. Seq 16: sexual touching child under 10.
1. Defence: below mid-range.
2. Crown: below mid-range.
1. Seq 17: sexual touching child 14 - 16.
1. Defence: below mid-range.
2. Crown: below mid-range.
Possess child abuse material offences
1. Seq 13: possess child abuse material.
1. Defence: lower end.
2. Crown: lower end but not bottom of range.
The slight differences in the assessment of objective seriousness between the Defence and the Crown reflect differences in semantics and, to some degree, possible differences in the somewhat elastic concept of where one range finishes and another starts.
The principal difference relates to the two counts of sexual intercourse where the Defence describes the objective seriousness as being "at or towards the bottom of the mid-range", while the Crown describes the assessment as "just below mid range". To the extent necessary, I prefer the assessment by the Defence.
While it is clear that there is not a graduated level of seriousness to be ascribed to different methods of committing an act of sexual intercourse, digital penetration in most instances will be assessed as less objectively serious than penile penetration. However, in my view, it still falls within a broad mid-range, albeit, towards the lower end.
[4]
SUBJECTIVE FACTORS
The offender was not called to give evidence on the sentence proceedings. A psychological report, which included his personal background and history as recounted to the psychologist, was tendered as part of the Defence Tender Bundle.
A handwritten letter of apology from the offender was also tendered without objection, together with a number of character references and his health records from Justice Health.
I note the necessary reserve which the court must entertain with regard to the receipt of unsworn mitigatory material which, needless to say, is not subject to testing in cross-examination. I also note the particular observations of Bellew J in Lai v R [2021] NSWCCA 217.
The psychological report by Dr Thea Gumbert dated 6 February 2024, followed a 2-hour assessment which included a clinical interview and the verbal administration of several psychometric measures. The assessment was conducted by audio-visual link. Dr Gumbert was provided with a letter of instruction and the Agreed Facts on sentence. She also, relevantly, was provided with excerpts from the Justice Health records.
The offender was born in August 1991. The offending conduct occurred when he was approximately 28 years of age, and continued up until he was approximately 30.
The offender told the psychologist that he was the middle child of three having two sisters, one older and one younger. He described having had a normal upbringing and having a great relationship with his family, including his siblings. He told Dr Gumbert that although the family lived in housing commission properties, the family's needs were provided for as a consequence of his father's employment as a mechanic.
The family had lived in a number of regional areas, including Maitland and Muswellbrook in the Hunter Valley before in due course moving to Bulahdelah. He had been living with a girlfriend and her children for approximately three years prior to his arrest in 2022.
The offender reported that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was in primary school. However, he had not had any specific intervention, nor had he been prescribed any medication. He left high school after completing year 10. He performed casual farm work for approximately two years, and after the family moved to Bulahdelah, he got employment at the sawmill. He described hating working at the sawmill, but continued working there for approximately 10 years due to the unavailability of other jobs in the area.
In 2013, he had suffered a workplace injury in which the middle ring and little fingers of his dominant left hand were severed while operating a saw. In due course he underwent multiple surgeries and physiotherapy before returning to work within 6 months. The offender described that his employer immediately placed him back using the same saw that had been involved in his accident.
In 2021, whilst on holidays, he had sustained multiple fractures and a dislocated elbow to his right arm. He required reconstructive surgery and ultimately determined to change his employment. He subsequently obtained employment as a depot hand at several local rubbish tips. He said that he loved this employment and that "it was a fantastic job".
The offender reported to the psychologist that he had struggled with anxiety all of his life. However, he said that he had never sought any treatment and other than the asserted diagnosis of ADHD when he was a child at primary school, he had never been assessed or diagnosed with any mental health condition. He recounted that he had never discussed his mental health with his treating general practitioner over the years. Dr Gumbert described the offender having dealt with social anxiety and being nervous around other people by drinking alcohol. She described him drinking excessively as a means of managing his anxiety.
Dr Gumbert also described some difficulties of persistent depression for several months after his fingers had been severed in 2013 and his arm reconstruction in 2021. However, he denied broader problems with post-traumatic stress symptoms.
The offender reported his anxiety having worsened during his time in custody. He described physiological sensations of panic and concern regarding the sentencing proceedings. He also expressed concerns regarding his safety from other inmates.
The offender described heavy drinking particularly on weekends. He described "easily" having 10 drinks at the pub before going home to drink more during weekends. He described typically drinking a six-pack of whisky mixers on weeknights. He described drinking alone rather than just in social settings.
However, he did not perceive his drinking as problematic at the time but reports now doing so, with hindsight.
The offender described drinking making him more confident in his personality but also more impulsive and likely to act "stupid". He told the psychologist that he had remained abstinent from substances in custody despite being offered "hooch" on various occasions. He reported having attended Alcoholics Anonymous meetings whilst in custody.
The offender described his sexual history to the psychologist which included accessing pornography during his teenage years. His only sexual partner had been the girlfriend who he met and in due course moved in with after he was 25. He described as occasionally looking at pornography during the time of that relationship. However, he denied having ever sought out child abuse material online.
It was noted that he had no prior involvement with criminal conduct and had no criminal antecedents.
The offender claimed that all of the offences had occurred in the context of heavy intoxication where he would be "drunk to the point of spewing or passing out." He initially told the psychologist that he did not know why he had committed the offences and maintained that he had no sexual interest in the victims when he was sober. However, he then admitted to having had some sexual thoughts about the victims (particularly about seeing their breasts) when he was drunk. He said that he then got impulsive and acted on these thoughts.
He described to the psychologist that it was a "terrible, horrible thing" that he had done. He said he felt ashamed and had difficulty looking at himself in the mirror. He told Dr Gumbert that he had become more religious whilst in custody and had been reading the Bible daily and praying to God for forgiveness.
A number of verbal assessments pursuant to DSM-V were administered during the interview. His oral responses were consistent with moderate depressive symptoms and extremely severe symptoms of generalised and social anxiety. An audit questionnaire with respect to screening for excessive alcohol consumption fell within the high-risk category and suggested a high probability of alcohol dependence.
With respect to an assessment of the likelihood of future offending, Dr Gumbert stated: "At present, it is not scientifically possible to accurately predict whether an individual offender will or will not reoffend." However, the psychologist pointed out that the forensic field of psychology had developed instruments from which an estimate might be calculated. She set out in some detail the multifactorial elements leading to such a calculated assessment.
An assessment by means of the actuarial measure of relative risk for sexual offence recidivism, Static-99R, resulted in an assessment which placed him in the Level 3 risk category of being charged or convicted of another sexual offence within the next five years. Dr Gumbert said that this might be interpreted as the offender presenting an "average" risk of sexual recidivism.
Dr Gumbert also expressed the risk of future offending pursuant to the Risk of Sexual Violence Protocol (RSVP) which is a structured professional judgment tool. I do not set out the detail of the 22 items involved in such an assessment which are variously grouped into five broad categories.
In the course of analysing risk scenarios, Dr Gumbert noted that it was unclear whether the offences involved direct planning or were a series of impulsive and opportunistic acts. She noted that the nature of any reoffending would most likely relate to contact or non-contact offences against children or young persons in situations where the offender had access to them without close supervision.
She opined that this could include the production of child abuse material and that the offender might also be at risk of seeking out child abuse material from other sources. She thought he would be at increased risk while using substances and if sexually frustrated by virtue of being single or experiencing problems in a relationship.
It was noted that the relationship with the previously described girlfriend no longer exists. The ultimate conclusion by the psychologist was that the offender's "case prioritisation" was classified as "moderate/elevated".
However, she considered that he presented a low risk of general criminality or serious physical harm to others.
Dr Gumbert offered diagnoses of a number of disorders pursuant to the criteria in DSM-V. These were a Social Anxiety Disorder, Generalised Anxiety Disorder, Alcohol Use Disorder and Paedophilic Disorder.
In her opinion there was a nexus between these diagnoses and his offending conduct.
The psychologist indicated that in her opinion the offender had demonstrated insight into his areas of criminogenic risk and had expressed what appeared to be genuine shame and remorse and a desire for rehabilitation by any means necessary, including treatment programs and abstinence from alcohol.
The offender's letter of apology stated that he was writing the letter "to explain how I feel and how sorry I am about what I have done". He said that what had occurred was "horrible and disgraceful". He said that he was ashamed and hated himself. He described panicking in gaol wondering how long he would get and what gaol he was going to go to and whether he would be bashed by other inmates. He said that no one should ever go through such offences, "especially a child". He hoped that the children could forgive him in the future. He prayed to God to forgive him for his sins as he tried to forgive himself. The offender set out a handwritten list of dates and periods of time during his period in custody when he had been subject to lockdowns.
A reference from the Chaplain at the Mid-North Coast Correctional Centre date 8 February 2024 was also tendered. The Chaplain, Reverend James Deaton, described the offender's "faith journey" having appearing to have started whilst he was in gaol. The Chaplain described the offender having shared with him his family dynamics and in particular, his struggles with alcohol, which were said to be closely associated with family drinking habits.
The offender's role as a sweeper in the accommodation area of the gaol for about 50 men had been occupied by him for approximately a year. The offender had recently given up that position as it had been too stressful for him. With respect to the offender's intentions when he was released back into the community, the Chaplain was impressed by how consistent and enthusiastic the offender had been in expressing his desire to join a local church and continue the journey which he had commenced in gaol.
The Chaplain fairly observed however, "whether he puts into action these desires is another question and a decision only David can make." The Chaplain noted that the Positive Lifestyles Certificate was given to the offender after completing the course in June 2023. He had also completed two other faith-courses for which there were no certificates.
The Positive Lifestyle Program Certificate was included in the Defence Tender Bundle.
A Certificate of Achievement from the President and CEO of Crossroads, a program called "Who are you?", was also attained and has similarly been included in the Defence Tender Bundle.
A letter from the offender's sister, Ms Gabrielle Burns, was also tendered. She indicated that she believed it to be important to share her perspective of the offender's character and conduct. She described her brother having a large and committed support system both in her and the entire family. She expressed the firm belief that the charges against him were uncharacteristic of his true nature. She indicated her willingness to assist him in positively contributing to the community in the future and said that she will be there for him when he is released.
I note that Ms Burns is a youth support worker and I accept what she has said regarding a support network which will be available to assist in the offender's future rehabilitation.
[5]
COMPARATIVE CASES
The parties did not provide the Court with any comparative cases. However, I have had recourse to the "blunt instrument" of the JIRS statistics maintained by the Judicial Commission which provides some assistance in ascertaining a broad range of sentences from past cases. I have also perused a number of cases dealing with the different substantive offences with which the present matter is concerned. I bear in mind that often so-called "comparable" cases turn on their own subjective factors and that caution needs to be borne in mind in relation to arithmetical calculations.
R v MJ [2023] NSWCCA 306 is a recent Court of Criminal Appeal decision in relation to an offence contrary to s 66C(1) of the Crimes Act 1900. The matter was clearly more serious factually and in the assessment of objective seriousness than the individual present matters. MJ had penile/anal intercourse with the 10-year-old daughter of a woman with whom he had a relationship and lived with on occasion.
The day after a domestic violence incident between the offender and the child's mother which was the subject of separate charges, the offender had taken the child into a toilet at a service station where he had pushed her down to her knees and pulled her pants down before spraying lubricant onto her anus. He then had penile/ anal intercourse with her before ejaculating onto her back.
An additional charge of a sexual act with or towards a child of 10 was required to be taken into account on a Form 1 document. This related to separate offending against the same child earlier the same day.
At first instance, Grant DCJ had imposed a sentence of 3 years imprisonment with a 2 year non-parole period after a 25% discount for the plea of guilty.
A Crown appeal against the inadequacy of the sentence was upheld. Notwithstanding that the offender was a 40-year-old Aboriginal with a reduction in moral culpability because of Bugmy considerations (R v Bugmy [2013] HCA 37; 249 CLR 571), the Court of Criminal Appeal re-sentenced the offender to a head sentence of 6 years with a non-parole period of 4 years.
The matter of Hockley v R [2023] NSWCCA 285 involved offences of sexual intercourse with a child aged between 14 and 16 and an offence of possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900, amongst other offences. The factual background to this matter is substantially different to the present proceedings.
While it related to three victims, the offender was a male at the time, as were each of the victims. I use the past participle in referring to the offender as a man due to the fact that, by the time of sentence and the subsequent appeal, he had expressed the wish to live and be seen as a woman. An aggregate term of 6 years imprisonment with a non-parole period of 3 years and 7 months following pleas of guilty was not interfered with by the Court of Criminal Appeal.
The acts of sexual intercourse were acts of fellatio and the indicative sentence was 28 months with a non-parole period of 17 months. A charge of producing child abuse material derived from filming incidents with the offender was placed on a Form 1 and taken into account on the sexual intercourse with a child offence.
The possession of child abuse material related to 647,840 image files and 30,071 video files located on various electronic devices at the offender's home. Almost 2,000 files contained child abuse material falling within the Interpol baseline Category 1 (children under 13 involved in genital / anal sexual acts) or Category 2 (involving children under 16). The indicative sentence of 18 months was not criticised by the Court of Criminal Appeal.
I should also indicate that I have perused numerous of the published judgments by single instance judges of this court, each of which turn on their individual circumstances.
With respect to offences contrary to s 91G(1)(a) namely, using a child under 14 years for the production of child abuse material, there do not appear to be any published decisions in the Court of Criminal Appeal.
There are only two published decisions relating to this section of the Crimes Act in the District Court.
In R v Yates (a pseudonym) [2021] NSWDC 701, Yates was a male offender. His wife had discovered thousands of images of young girls, sorted into files under the girls' names, which in broad description were pornographic. Numerous photographs were of young girls in public locations including photographs that could only have been taken by the offender. The offences which were subsequently charged included four counts of aggravated indecent assault, four offences of using a child under 14 to make child abuse material, three counts of possession of child abuse material and one count of using a carriage service to transmit child abuse material, contrary to the Commonwealth Criminal Code.
The offences of using a child to make child abuse material contrary to s91G(1)(a) related to the taking of photographs of the genitalia of children who had been staying overnight at the home of the offender and his wife.
Judge Haesler SC imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years. The indicative sentence with respect to the offence under s 91G(1)(a) was 5 years and 3 months with a non-parole period of 3 years and 11 months. This sentence incorporated a discount of 25% following an early plea of guilty. The offending conduct encompassed five separate incidents with a child who was eight or nine years of age. The offending occurred over a 14-month period and included 35 images. Some were of the child's genitalia exposed while she was sleeping, and other images had been taken while she was showering.
R v NC [2020] NSWDC 547 was a sentence imposed by Lerve DCJ following pleas of guilty. The offender was 79 years of age at the time of offending and was 81 at the time of sentence. The 10-year-old victim was a ward of the State and under the parental responsibility of the Minister for Family and Community Services. She was living with the offender and his partner in a regional town. The offender had encouraged the child to take photographs of her vagina and had also taken photographs himself of her genital area. A second charge under the same section was preferred with respect to videos taken at the same time as other offending, including intentionally sexually touching the child.
With respect to the first charge of using a child to produce child abuse material, Judge Lerve gave an indicative sentence of 2 years and 3 months with an indicative non-parole period of 16 months.
With respect to the second offence relating to the videos, his Honour gave an indicative sentence of 2 years and 6 months with an indicative non-parole period of 18 months. These indicatives were part of an overall aggregate sentence of 4 years with a non-parole period of 2 years.
R v PG [2020] NSWDC 144 also involved offences by an older offender. He was 67 years of age, and the victim was the 8-year-old daughter of a friend of the offender. The offending had predominantly occurred at a Seventh-day Adventist Church where the victim's father had invited the offender to attend.
An offence of sexually touching a child under the age of 10 involved the pressing and caressing of the victim's vagina with the offender's hand on the outside of her clothing. This occurred in the context of a religious gathering, and despite the presence of a covering Bible, was observed by another member of the congregation. There were also offences included on a Form 1 which were taken into account with that substantive offence. The Form 1 offences related to the production of child abuse material and possession of child abuse material. Priestley SC DCJ gave an indicative sentence of 2 years and 6 months with a non-parole period of 20 months.
A second substantive charge under s 91G(1)(a) related to the offender prevailing upon the victim to take photographs of herself during church while using the disabled toilet. Other than the definition of child abuse material implying that the photographs were of the private parts of the person, the facts before the sentencing court did not describe the detail of the photos. His Honour indicated a sentence of 9 months with an indicative non-parole period of 6 months.
A further charge of possessing child abuse material contrary to s 91H(2) related to images found on CDs and a laptop computer at the offender's home. There were numerous images of naked children posing sexually on a number of CDs. There were at least 40 such images. In addition, there were in excess of 10,000 predominantly cartoon drawings showing infants and children engaged in sexual intercourse and drawings of babies being vaginally and anally penetrated by adults and also involvement in group sex.
His Honour indicated a sentence of 2 years. His Honour had assessed the objective seriousness as falling within the low range because the vast majority were cartoon drawings not involving real children.
The aggregate sentence imposed was 4 years with a 2 year non-parole period.
Offences relating to sexually touching a child under the age of 16 years contrary to s 66DB(a) of the Crimes Act 1900 were the subject of sentence in R v Barnes [2023] NSWDC 33. The offender was a 36-year-old master in Taekwondo and Jiujitsu who owned and operated a martial arts gymnasium.
A number of separate instances involving touching the penis of an 11-year-old pupil and touching the child's backside in the vicinity of his anus gave rise to three counts of sexual touching. Indicative sentences of 8 months, 21 months, and 2 months were indicated by Montgomery DCJ. I should note that the offending conduct with respect to the 2-month sentence related to a different 10 year old victim, and related to two kisses to the boy's cheek which a jury had found was "sexual" given the surrounding circumstances of the offender having requested the boy to undress and touch him in what was perceived as a sexual way on his shoulder.
The sentences to which I have referred from Judge Montgomery followed a jury trial. The aggregate sentence was 4 years and 3 months with a non-parole period of 3 years.
In R v Shiel [2022] NSWDC 648, Judge Fitzsimmons SC sentenced a 63-year-old offender with respect to intentional sexual touching of a child under the age of 16 contrary to s 66DB(a). The offender was the victim's great-uncle. The victim was living with his father who had suffered a stroke, at the same premises as the offender. The first offence occurred on the victim's 10th birthday. She went into a back room at the house where the offender "French-kissed" her and told her not to tell anyone as it was their secret.
The indicative sentence with respect to this matter following a plea of guilty was 2 years and 3 months.
A subsequent offence on a later occasion involved the victim straddling the offender while he was seated in a chair. The offender hugged the victim and kissed her using his tongue. The victim was grinding her hips on the offender. This offence was included on a Form 1 with respect to further conduct which involved touching the victim's vagina.
The second substantive offence related to the offender putting his hand inside the victim's shorts and underwear while she was still straddling him on the chair and touching her bare vagina using his fingers for approximately 10 to 15 seconds. An indicative sentence of 2 years and 3 months was similarly the outcome for this offending.
After the sexual touching of her vagina, the offender held the victim's hand and put it inside his own pants. The victim touched his penis for another period of approximately 10 to 15 seconds. This act was similarly charged pursuant to s 66DB(a) of the Crimes Act 1900. The "French-kissing" which had been placed on a Form 1 was taken into account for this offence. The indicative sentence, taking into account the Form 1 offending, was 2 years and 7 months.
An aggregate sentence of 3 years and 6 months was imposed with a non-parole period of 2 years.
The last comparative sentence to which I will make reference is R v Duncan [2022] NSWDC 543. The aggregate sentence imposed in this matter followed a jury trial with respect to eight counts of sexually touching three children who were aged between 10 and 16 years.
The offender had been 64 at the time of his offending. He was living at that time with his wife and two daughters who were aged 10 and 12 in the Bega area on the New South Wales South Coast.
The offender and his wife and both of his daughters were heavily involved in the local Pony Club. Four counts in respect of which the jury returned verdicts of guilty related to two separate occasions with a 13-year-old victim.
Various members of the Pony Club were on camping trips in Kosciuszko National Park. The first offence occurred when the offender, one of his daughters, and the victim were sleeping in swags which were set up close together. During the evening, the offender reached over and placed his hand into the victim's swag and put his hand up under her shirt and under her bra and touched her breasts for approximately 5 minutes.
The second offence occurred on a later camping trip. The camping trip was on 2 nights. The offender had plied the 13-year-old victim with alcohol. On the first night in the course of going to sleep in swags, the offender had reached into the victim's swag and touched her breasts underneath her bra for around 5 minutes.
The following night, she was again plied with alcohol. The offender again put his hand into the victim's swag and moved his hand under her underpants and touched her on the outside of her genital area.
The charges of sexually touching with this victim were three substantive offences of touching her breasts, and one of the touching of her genital area. Judge Tupman gave indicative sentences of 18 months for each of the breast touching offences and 2 years and 6 months with respect to touching in the genital area. As already noted, these indicatives were given after a jury trial following pleas of Not Guilty.
Additional charges of sexually touching a second victim involved hugging and touching of a kind which did not require an imposition of a custodial term.
Two further charges of sexually touching a third victim occurred in broadly similar circumstances to the first victim. While sleeping in swags on a Pony Club camping trip, the offender put his hand into the swag of the 12-year-old girl sleeping beside him. He touched her breasts, and on two separate occasions, rubbed his hand for up to 10 minutes on her genital area but over the top of her jeans. Her Honour gave indicative sentences of 2 years with respect to each such offending.
An aggregate sentence of 5 years was imposed with a non-parole period of 2 years and 6 months.
[6]
CONSIDERATION
The material in the present case does not include any victim impact statements. However, the court is cognisant of the undoubted harm that early exposure to sexual interaction can have in the development of a child and the longstanding effects which have been recognised in this area of criminal offending.
As Baroness Hale of Richmond said in R v G [2008] UKHL 37; [2009] 1AC92, the courts are aware of the "long term and serious harm, both physical and psychological, which premature sexual activity can do."
The Court of Criminal Appeal in New South Wales has repeatedly observed that child sexual offences have profound and deleterious effects upon victims for many years, if not for the whole of their lives: see R v CMB [2014] NSWCCA 5 at [92].
The offending conduct by the offender Burns occurred in the context of humour being present in the homes of the victims, and him being a person in whom they should have been entitled to repose their trust. The offences took place in their own homes, and in some instances, in their own beds.
The offender has pleaded guilty and as such is entitled to the statutory discount of 25%.
I accept that he has expressed remorse to the Chaplain at the Correctional Centre, and also to the psychologist. He has also expressed positive intentions regarding rehabilitation. I accept those indications and expression of remorse whilst entertaining some level of reserve in the absence of seeing him give evidence.
Prospects for rehabilitation must, in these circumstances, be somewhat guarded. As the Chaplain succinctly put it, whether he puts into action these desires is another question.
I accept that the offender is a person of prior good character. That factor is of but small moment in the circumstances of the offending.
I have earlier noted the opinion by the psychologist Dr Thea Gumbert and her opinion of a nexus between the disorders which she has identified and the offending conduct. However, the presence of anxiety disorders of the kind identified, do not have a direct causal nexus with the offending such as to operate in mitigation of the offender's moral culpability.
As described by the psychologist, it was the consumption of alcohol and the resultant self-induced intoxication which was the direct causal connection with the offending, and which led to acting out of the otherwise suppressed sexual urges. Self-induced intoxication, whilst providing an understanding of why the offences occurred, do not operate to mitigate the commission of the offences.
I accept the submission by the Crown that after the offender had commenced engaging in inappropriate conduct with one of the children whilst intoxicated, he must thereafter have had a clear understanding and knowledge of acting on inappropriate sexual tendencies when intoxicated. He must then have known the effects of the alcohol on himself.
I do, however, take into account the impact of the offender's anxiety disorders which do, and will continue to, render his period of incarceration more onerous than a person not suffering from such persistent anxiety disorders. Whether the resolution of the present sentencing proceedings operates to alleviate, to some degree, the anxiety which has led to him attend on Justice Health facilities, remains to be seen.
I propose to proceed by way of an aggregate sentence pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act. I am, accordingly, required to indicate the sentences which would have been imposed for the separate substantive offences, and also to indicate a non-parole period with respect to those offences which carry and standard non-parole period.
The indicative sentences have taken into account the 25% discount for the offender's guilty plea.
With respect to the offending conduct against "Stephanie":
1. Sequence 1, sexual intercourse with a child between 10 and 14 years, the indicative sentence is 3 years with a non-parole period of 18 months;
2. Sequence 4, sexual intercourse with a child between 10 and 14 years, 3 years with an 18 month non-parole period:
3. Sequence 6, intentionally sexually touch a child between 10 and 16 years, 18 months;
4. Sequence 7, using a child under 14 years for production of child abuse material, 2 years and 3 months with a 16 month non-parole period.
With respect to the offending against the child "Louise":
1. Sequence 3, intentionally sexually touch a child under 10, (taking into account sequence 4 on the Form 1 document, namely the use of a child under 14 for production of child abuse material), 2 years and 6 months with a non-parole period of 18 months.
With respect to the offences against the child "Georgina":
1. Sequence 2, use of a child under 14 for production of child abuse material, 2 years and 3 months with a non-parole period of 16 months:
2. Sequence 15, intentionally sexually touching a child under 10, 2 years 3 months, with a non-parole period of 16 months.
The three remaining offences involving actions by the offender with respect to "unidentified children" are each derived from the one-second video clips to which I have earlier made reference.
What is seen in those one-second clips gives rise to sequence 6, use of a child for production of child abuse material, and two offences, sequence 16 and sequence 17, of intentionally sexually touching a child: sequence 16 relating to a child said to be under 10 and sequence 17 relating to a child between 10 and 16 years.
I have already indicated that I am not satisfied beyond reasonable doubt that these are necessarily additional children than those who are able to be identified. I accept that the elements of the offences are established by virtue of the pleas of guilty.
With respect to sequence 6, using a child for production of child abuse material, the indicative sentence will be 18 months with a non-parole period of 10 months.
With respect to sequence 16 of intentionally sexually touching a child under 10, the indicative sentence will be 2 years 3 months with a non-parole period of 16 months.
With respect to sequence 17, of intentionally sexually touching a child between 10 and 16 years, the indicative sentence will be 18 months with a non-parole period of 10 months.
With respect to sequence 13, possession of child abuse material, the indicative sentence will be 6 months.
The aggregate sentence will be a head sentence of 6 years with a non-parole period of 4 years. The sentence and non-parole period will be backdated to the date of the offender's arrest namely 6 December 2022. The earliest date he will be eligible for release will be 5 December 2026. The additional term of 2 years will expire on 5 December 2028.
Mr Burns, I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006, which applies to "serious offences" including the offences for which you have been sentenced.
In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
You should understand that it is, therefore, in your interests to engage in such rehabilitation opportunities that may be offered to you in the course of your sentence.
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Decision last updated: 14 May 2024