Citation: R v Burns [2024] NSWDC 173
Court: District Court of New South Wales
Date: 22 March 2024
Judge(s): Sutherland SC DCJ
Background
The offender, David Burns, appeared for sentencing after pleading guilty to 10 substantive offences and one additional offence of possession of child abuse material. The offending involved sexual misconduct against multiple child victims, all of whom are subject to statutory suppression of their identities. The offender was a family friend who regularly visited the homes of the affected families, giving him repeated unsupervised access to the children.
Three identified victims are referred to by pseudonyms in the judgment: "Stephanie" (aged approximately 11 to 13 at the time of the offences), her younger sister "Louise" (aged approximately 8 to 9), and "Georgina" (aged 7). The offending also involved unidentified children captured in video footage found on the offender's mobile phone.
The offending spanned several years and included digital penetration, intentional sexual touching, and the production and possession of child abuse material. Police discovered videos and still images on the offender's phone after his arrest on 6 December 2022, and that material was central to identifying additional victims and establishing the full scope of the offending.
Legal Issues
- What sentences were appropriate for each substantive offence, having regard to the maximum penalties, standard non-parole periods, and the circumstances of the offending?
- How should the principle of totality be applied to arrive at an appropriate aggregate sentence across 11 offences?
- What weight should be given to the offender's claimed intoxication at the time of some offences?
- What mitigating and aggravating factors applied, including the offender's guilty pleas, lack of prior criminal history, and the abuse of trust involved in the offending?
Decision
The court sentenced the offender on charges spanning sexual intercourse with a child aged between 10 and 14 (contrary to s 66C(1) of the Crimes Act 1900), intentional sexual touching of children under 10 and between 10 and 16 (contrary to ss 66DA(a) and 66DB(a)), production of child abuse material using children under 14 (contrary to s 91G(1)(a)), and possession of child abuse material. Each category carries significant maximum penalties, ranging from 10 to 16 years imprisonment, with standard non-parole periods for many offences.
The court determined individual indicative sentences for each sequence before applying the totality principle to set an aggregate sentence. For the most serious offences, the court imposed indicative non-parole periods of up to 5 years on individual counts. A Form 1 offence (a charge taken into account at sentencing without separate conviction) relating to production of child abuse material involving "Louise" was also considered.
In assessing the offender's claim that he was heavily intoxicated during some of the offending, the court approached this with caution. Intoxication of itself does not reduce moral culpability for deliberate sexual offending against children, and the premeditated nature of the photographing and filming of victims undermined any suggestion that the conduct was the product of impaired judgment alone.
The court identified the abuse of trust and authority as a significant aggravating feature: the offender was a family friend with regular, trusted access to the victims in their own homes. The guilty pleas and the offender's lack of prior criminal history were recognised as mitigating factors. The court also noted the application of the Crimes (High Risk Offenders) Act 2006, informing the offender that the State retains the power to apply for continued supervision or detention at the conclusion of his sentence if he is assessed as a high-risk offender.
Orders Made
- Aggregate head sentence of 6 years imprisonment with a non-parole period of 4 years.
- Sentence backdated to the date of arrest: 6 December 2022.
- Earliest eligibility for release: 5 December 2026.
- Additional term of 2 years to expire on 5 December 2028.
Key Takeaways
- The District Court applied the totality principle to multiple serious child sexual offences, arriving at an aggregate sentence that reflected the overall criminality without exceeding what was just and appropriate when all offences were considered together.
- Abuse of trust is a recognised aggravating factor in child sexual offending sentencing; the offender's position as a family friend with repeated domestic access to the victims was treated as a significant consideration in setting indicative sentences.
- Where an offender claims intoxication as a circumstance of the offending, a sentencing court is not required to accept that claim as substantially mitigating moral culpability, particularly where the offending involved deliberate acts such as recording victims on a mobile phone.
- Production and possession of child abuse material are treated as distinct and serious offences in their own right; in this case, the existence of recorded material on the offender's phone both corroborated victims' accounts and revealed additional victims who could not otherwise have been identified.
- Under the Crimes (High Risk Offenders) Act 2006, convictions for offences of this kind leave open the possibility of post-sentence supervision or continued detention if the Supreme Court determines the offender poses an unacceptable risk of reoffending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66C(1), 66DA(a), 66DB(a), 91G(1)(a), 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases:
- Bugmy v The Queen [2013] HCA 37
- Hockley v R [2023] NSWCCA 285
- Lai v R [2021] NSWCCA 217
- R v Barnes [2023] NSWDC 33
- R v CMB [2014] NSWCCA 5
- R v Duncan [2022] NSWDC 543
- R v G [2008] UKHL 37; [2009] 1 AC 92
- R v MJ [2023] NSWCCA 306
- R v NC [2020] NSWDC 547
- R v Olbrich [1999] HCA 54
- R v PG [2020] NSWDC 144
- R v Shiel [2022] NSWDC 648
- R v Yates (a pseudonym) [2021] NSWDC 701