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Judgment summary - Burgess v The Queen [2017] VSCA 59

The Court of Appeal today dismissed an appeal against sentence by an 83 year old man, Mr Harold Burgess. Mr Burgess pleaded guilty to 10 charges of historical sexual offending which occurred over five years in the late 1980s and early 1990s in respect of a complainant who was between the ages of around nine and 14 at the time. Mr Burgess was sentenced to eight years and six months’ imprisonment with a non-parole period of six years and six months’ imprisonment.

Mr Burgess complained that the sentence was manifestly excessive and that the sentencing judge had failed to consider current sentencing practice. In particular, he complained that given his advanced age, the sentence was crushing. Mr Burgess relied on Australian Bureau of Statistics data which showed that the non-parole period imposed represented 73 per cent of his remaining life expectancy, and the total effective sentence represented 108 per cent of his remaining life expectancy.

The Court of Appeal found that the statistics relied on by Mr Burgess did not meaningfully assist, as they were general in nature and did not provide evidence about his health and life expectancy specifically. The judge had taken into account Mr Burgess’ old age, and had factored that into consideration along with other sentencing considerations, such as the serious nature of the offending. Mr Burgess did not demonstrate that the sentence was manifestly excessive when all these factors were taken into account. The judge had also carefully considered each offence in coming to a total sentence which was just and appropriate.

The sentencing judge also had appropriate regard to current sentencing practice. The Court of Appeal noted that sentencing statistics have their limitations. The application for leave to appeal was refused.

NOTE:  This summary is necessarily incomplete.  It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.  The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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Author: Supreme Court of Victoria
Publisher: Supreme Court of Victoria
Date of Publication: March 2017
Copyright: Supreme Court of Victoria, 2017


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