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Brent Burne
.
Abduction, rape, unlawful sexual connection (x6) and indecent assault (x2) of a 14 year old girl in Hastings in November 2006
Committed this offence 18 months after being released from jail for abduction with intent to have sexual intercourse and wounding with reckless disregard
.
none known
Born 1959
Prison
Sentenced to 6 years 6 months in October 2001
Sentenced to preventive detention with a 7 year minimum non-parole period in June 2008
Background
Hawkes Bay Today story 21st February 2008
The Crown will seek preventive detention for a man who has admitted abducting and raping a 14-year- old girl in Hastings almost 16 months ago. Brent Stoddart Burne, now 49, who was a Hastings process worker at the time the offences were committed on the night of November 8, 2006, has previous convictions for serious sexual offending, and was jailed in 2001 for offences involving the abduction of a fellow worker.
The possibility of preventive detention was signalled in the High Court in Napier yesterday when Crown prosecutor Steve Manning applied for an order for two specialist reports required before such a sentence could be imposed. The application came after Burne and a Hastings woman, whose name was suppressed, pleaded guilty to a charge of sexual violation by unlawful sexual connection.
On Monday, Burne also admitted one charge of rape, six others of sexual violation by unlawful sexual connection, and one of unlawfully detaining the girl, all relating to events on one night. Similar charges against the woman were withdrawn by the prosecution. The pair had originally denied the charges, and were to have faced a trial this week. Both were remanded in custody for sentence, with Burne to appear on May 7 and the woman on March 5.
Sentencing notes of Justice Harrison relating to Burne as follows;
[1] Mr Burne, you have pleaded guilty to one charge of sexual violation by rape, six charges of sexual violation by unlawful sexual connection, two charges of indecent assault on a young person, and one charge of abduction for the purpose of sexual connection.
[2] Both Mr Manning and Mr Forster acknowledge that the primary question for determination today is whether or not you should be sentenced to preventive detention or to a finite or fixed term of imprisonment. The secondary question will be the length of time which you must serve as a minimum term of imprisonment.
[3] I will deal first with the facts. They will have a major influence on which of the two sentencing options should be adopted and, if you are sentenced to a finite term of imprisonment, the length of that term.
[4] You befriended the complainant some time in 2004. She was then 12 years of age and a friend of your step-granddaughter. You supplied the girl with alcohol and cigarettes on many occasions. You pretended to act out of friendship but there can be no doubt that you had a more sinister motive. It was part of your strategy of grooming children, within your wider view that you were entitled to sexual favours in return for satisfying basic requests. It is beyond comprehension that a man in his 40s would choose to form relationships of that type.
[5] You arranged to pick up the complainant in your car at about midnight on 7 November 2006 near Hastings. That day was significant. As Mr Manning points out, it was the end of your probationary period following release from prison after serving a lengthy term of imprisonment. You had been drinking heavily. The purpose of the meeting was said to be for you to provide the girl with cigarettes.
[6] When you met at the pre-arranged place, the complainant entered the car. She was wearing pyjama pants. In due course, after going to two intermediate destinations, you drove towards the complainant’s home. You saw Tracy Shepherd walking along the road. You were friends, although the relationship was of a dysfunctional nature. You picked up Tracy Shepherd. The meeting was pre¬arranged. However, the two of you pretended not to know each other.
[7] You drove to Cornwall Park in Hastings. You stopped the vehicle there. Ms Shepherd exited from the back seat and opened the front passenger’s door. She forced herself into the front passenger seat, forcing the complainant into the centre. In this way Ms Shepherd trapped the girl between you and her.
[8] You then sat on top of the complainant, straddling and facing her, while Ms Shepherd took your place in the driver’s seat. You forcibly removed the girl’s pyjama pants while Ms Shepherd told her that she ‘had no choice’ but to comply. While in this position, you inserted your fingers into the girl’s vagina and anus on a number of occasions. Ms Shepherd also inserted her fingers hard up inside the girl’s vagina. These events occurred with such force that they caused immediate physical pain, leaving aside the mental pain the girl was enduring.
[9] You then licked the girl’s vagina before inserting your penis there and then into her anus. You alternated between both activities. Upon completion you instructed the girl to masturbate you. Finally, you were able to force your penis inside the girl’s mouth, so that she was unable to move her head. All these events occurred against her will.
[10] Ms Shepherd then started the car and drove around the corner while you remained straddled over the girl. Ms Shepherd left the vehicle later. You resumed your original place in the driver’s seat. You drove the girl to her grandmother’s home. You dropped her off there at about 2 am. You showed no concern whatsoever for her condition and you went about life afterwards as if nothing untoward had happened.
[11] Earlier this year Williams J sentenced Ms Shepherd to a term of four years nine months imprisonment following her plea of guilty to one charge of sexual violation by unlawful sexual connection. The Judge adopted an adjusted starting point of five-and-a-half years. He made some allowance, though, for a late guilty plea and, importantly, Ms Shepherd’s previous good character.
[12] The principal inquiry, Mr Burne, as I have already said, is whether or not the appropriate sentence is preventive detention or a lengthy fixed term of imprisonment. Mr Forster will have explained to you that the purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to its members. You are plainly eligible for the sentence. That is because you have committed qualifying sexual or violent offences. You were over the age of 18 years when you committed them, and I am satisfied on the professional reports, both from the psychiatrist and the psychologist and also the probation officer, and from the circumstances of your offending in 2001, which I shall discuss shortly, and again on this occasion that you would be likely to commit another qualifying sexual or violent offence if released at the date of expiry of a sentence that would otherwise be imposed.
[13] Being satisfied of your eligibility for preventive detention, I must now consider five mandatory factors in deciding whether or not to impose the sentence.
[14] First, there is the pattern of serious offending disclosed by your history. It has been emphasised this morning by Mr Manning. You have previous convictions for abduction and wounding with reckless disregard. I have read the summary of facts. Based upon them Judge Rea sentenced you in the District Court to a term of six-and-a-half years imprisonment on 10 October 2001.
[15] The Court of Appeal allowed an appeal, reducing the sentence to five-and-a¬half years. The best summary of the circumstances is found in that Court’s decision (R v Burne CA367/01 20 June 2002) at para [3] as follows:
Mr Burne and the complainant were fellow workers. She normally left the premises at about 6.30 pm. On 20 April 2001 Mr Burne was waiting for her outside the external door disguised in dark overalls, balaclava, mask and gumboots. He was carrying a boning knife about 30 cms in length and a laundry bag. Seeing Mr Burne behind the door, the complainant screamed. He attacked her with the knife. She wrestled with him. At one stage he appeared to be trying to stab her. Later he tried to put the laundry bag over her head. She continued to scream, plead unavailingly with him to let her go, and wrestle with him and the knife. She invited him to take the money in her handbag and let her go, but this plea was ignored. She bit Mr Burne on the forearm. Very fortunately for your victim, and in a way for you, Mr Burne, your attack was discovered. Two fellow workers intervened and saved her.
[16] The Court of Appeal noted Judge Rea’s description of these events as extremely disturbing. It had many of the features present in the current offending. There was brutal and opportunistic behaviour accompanied, though, by a degree of pre-planning and premeditation. There was a prolonged attack despite attempts to resist. The complainant suffered significant psychological scarring. And, as part of your defence of the case, although not here, you attempted to downplay the incident by describing it as a joke. It would have come as no surprise to you, Mr Burne, that the jury did not accept that explanation.
[17] I agree with Mr Manning. The circumstances of your previous offending are most significant; they bear a close resemblance to these events. While you did not use a weapon on this occasion, you were able to enforce your will by enlisting Ms Shepherd’s assistance.
[18] Second, Mr Burne, there is the seriousness of the harm caused to the community by your offending. I have already referred to the harm that you have inflicted on your previous victim. Here I refer to the current complainant. The breach of trust is self-explanatory. She was 14 years of age. You knew that she relied on you implicitly; otherwise, Mr Burne, she would not have agreed to place herself in a vulnerable position with you in a remote area late at night. You were her good friend’s step-grandfather. You had previous dealings with her over the previous two years.
[19] The girl’s victim impact statement is commendably restrained. She talks about her fear, and about the way you would not let her leave the vehicle. She was extremely frightened of Ms Shepherd. She could not understand why another female would be a party to this kind of behaviour. Your breach of trust and your brutality have left her bewildered and traumatised. Her psychological suffering does not require emphasis.
[20] Perhaps the worst feature of your crimes is that you robbed the complainant of her virginity. You have taken something precious in the most violent and degrading of circumstances. Not unnaturally the girl suffers ongoing trauma, fear of others and fear of relationships. She requires ongoing counselling. The harm to that girl, as with your previous victim, is harm to society and must be recognised.
[21] Third, Mr Burne, apart from the nature of your previous offending, there is information indicating a tendency to commit serious offences in the future. This factor weighs heavily with me. The report prepared by the psychologist, Dr Appleyard, has been of great assistance. I cannot say that for the report prepared by the psychiatrist, Dr Barry Walsh.
[22] Dr Appleyard has assessed you according to three objective standards. One is the Automated Sexual Recidivism Scale (ASRS). It is designed to estimate the probability of sexual recidivism among adult males who have already been convicted of at least one sexual offence against a child or a non-consenting adult. Dr Appleyard describes that scale as ‘robustly predictive’. She notes, though, that it is a static measurement and does not include factors that would be part of a more extensive or comprehensive assessment. On that scale, as Mr Forster has emphasised today, your assessment of sexual re-offending or its likelihood within five years of release into the community is moderate to low. However, your conduct here in committing very serious crimes within 18 months of release undermines any favourable inference available from reliance on the ASRS scale.
[23] Two other measures place your risk at a much higher level. One is the STABLE 2007. It is designed to assess dynamic factors which have been shown to increase the likelihood of sexual recidivism predicted by static risk factors. On this measurement your risk of re-offending is estimated as high. Among the serious risk factors present here are, first, the absence of positive significant social influences; your hostility towards women – your attitude suggests generally that they are sexual objects available for your own gratification, regardless of consent; there is your general history of social rejection; and your lack of empathy for and inability to comprehend how your actions impact on others – I have already referred here to your indifference shown to the complainant’s condition and your preoccupation with your own gratification.
[24] Also, as I have observed, while there was a degree of planning, your offending discloses impulsivity – that is, where you act without any consideration for the consequences; you have poor problem solving skills, illustrated by a history of excessive alcohol abuse; and you have a view that sex is a bargaining tool and something to be provided in exchange for kindness or friendship with others. Also there is your preference for anal sex over vaginal sex wherever accessible and for grooming victims; you use sex as a coping mechanism; you have deviant sexual preferences, confirmed most disturbingly, Mr Burne, by your admission to Dr Appleyard that you obtain gratification by the power you are able to exercise over your victims and forcing them to do as you tell them.
[25] The other measurement, the Psychopathy Checklist: Screening Version (PCL: SV), is an actuarial measure of risk of serious offending based on different factors. Dr Appleyard reports that this has a high degree of accuracy. You are assessed as having a high score. Evident in your profile are all the psychopathic personality traits of superficiality, deceitfulness, lack of remorse, lack of empathy and refusal to take responsibility for antisocial behaviour. Your very high score on that scale indicates a high risk of re-offending within five years of release into the community.
[26] As I have noted, Mr Burne, there is already objective evidence of the accuracy of both the STABLE 2007 and the PCL: SV measures in your case; I refer again to your offending in November 2006 within 18 months of being released into the community.
[27] In my judgment Dr Appleyard’s use of the assessment tools is extremely robust and informative. Her advice is illuminating and, as I have noted, is confirmed or verified by your own pattern of behaviour. I am in no doubt whatsoever that you will present a high risk of sexual re-offending whenever you are released back into the community, and moreover that that offending will be of a very serious nature.
[28] Fourth, there is the question of efforts taken by you to address the cause or causes of your offending. To your credit, Mr Burne, you have previously sought psychological assistance. You attended a number of sessions with Mr Morrison in 2005. However, despite that assistance, you re-offended. Mr Morrison noted ‘that it appears that the urge to offend greatly outweighs the negative consequences of [your] behaviour’. His conclusion was prophetic. And, as Mr Manning emphasises, your offending occurred on the last day of your probationary period. All your time with the psychologist counted for nothing.
[29] In this respect Dr Appleyard advises that the only way of diminishing the high risk of further serious offending is your successful completion of appropriate intensive specialised psychological treatment. In order for you to succeed, you must show willingness to meaningfully engage. Dr Appleyard says any programme will have to be long and intensive, paying particular attention to the number of schizoid personality traits noted in your assessment.
[30] You have advised the psychologist and the probation officer that you want to change. Both professionals express reservations about the sincerity of that statement. In particular, you told the probation officer that you had simply gone through the motions with Mr Morrison. Now you say, though, you are determined to change.
[31] I share the professionals’ reservations. You have shown no insight into your behaviour, despite the expression of unequivocal remorse and apology made on your behalf today by Mr Forster. You are indifferent in the way that you speak of the suffering inflicted on your victim. You may mean well now, Mr Burne, but I doubt your ability and your capacity to undergo what would have to be a radical transformation in attitudes and perception. While you are not suffering from a mental disorder, you suffer, as I have noted, from a range of severe personality disorders that manifest themselves in deviant and brutal sexual offending.
[32] Fifth, I must consider the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. In my judgment, taking into account the aggravating features and the totality of your offending, a starting point for your sentence on the lead or index offence of rape would be 12 years. It would be adjusted up to 14 years to recognise your past offending or propensity. An allowance for the mitigating plea of guilty would reduce the end sentence to 10 years.
[33] In my judgment a sentence of 10 years imprisonment would not provide adequate protection for society. Something much more is required. I have, of course, considered the availability of an extended supervision order upon your release. That factor may have carried some weight if the choice between preventive detention and a finite term was closely balanced. However, an extended supervision order is not to be resorted to in order to avoid the unpalatable decision to impose preventive detention. I am not satisfied, Mr Burne, that a lengthy determinate sentence coupled with the possibility of an extended supervision order would provide the necessary degree of protection for the public.
[34] In summary, standing back and evaluating all the relevant factors and the medical opinion, I am in no doubt that a sentence of preventive detention is the only available means of protecting the community. The scales weigh overwhelmingly in that direction. Without a radical and substantial intervention, you will continue to pose a real threat to women whenever you are released. Indeed, today Mr Forster on your behalf has volunteered that you are a serious recidivist. And, contrary to patterns discernible in others, a particularly disturbing aspect of your offending is that you started to commit serious sexual crimes at a relatively late stage in your life which have escalated in intensity.
[35] Accordingly, Mr Burne, you are sentenced to a term of preventive detention on all charges.
[36] The secondary or remaining issue is to fix the minimum term of imprisonment. It must be five years or more. As decisions in the Court of Appeal have emphasised, this is a particularly fact-specific exercise. It is one, though, within which you are entitled to a reduction against what would otherwise be an appropriate starting point on account of your plea of guilty.
[37] In fixing the minimum term I must decide what is appropriate to reflect the gravity of your offending at a level sufficient to punish, denounce and deter. I do not need to repeat the adverse features of your offending. There is no doubt that they deserve serious punishment and substantial denunciation. That would lead to a starting point for a minimum term of imprisonment of 10 years. An allowance for your plea of guilty would leave an end sentence of seven years minimum. That figure is little different from what would be the appropriate minimum term of imprisonment if I imposed a finite term of 10 years for the rape.
[38] There is also the question, Mr Burne, of whether a longer period is required for the purposes of protecting the community. I must consider a range of factors. Ultimately, though, that decision will be for the Parole Board. The Board will have to make that evaluation whenever you apply for parole. There is a substantial body of evidence, though, from Dr Appleyard’s report that you will continue, as I have said, to provide a risk to the safety of the community well past seven years without a radical change in the meantime.
[39] Accordingly you are sentenced to a minimum term of imprisonment of seven years. Please stand down.
