ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),
OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CRI-2015-009-002748
[2016] NZHC 644
THE QUEEN

v

ROBERT SELWYN BURRETT

Hearing:

12 April 2016

Appearances:

D L Elsmore for the Crown
R G Glover for the Defendant

Judgment:

12 April 2016

SENTENCING NOTES OF NATION J

[1]

There are some preliminary matters I need to deal with. At the request of Mr

Burrett, on 16 February 2016 I gave an indication as to the sentence which would be
imposed if guilty pleas were entered to certain charges. Mr Burrett pleaded guilty on
the basis of that indication on 18 February 2016. The summary of facts relating to
the relevant charges was read out in Court at that time.
[2]

Since then, I have dealt with various applications to film or record the

sentencing and also for suppression of the names of schools and a bus company
connected to the proceedings and Mr Burrett. For reasons I have given in judgments

R v BURRETT [2016] NZHC 644 [12 April 2016]

 released recently, I have suppressed the names of the schools and the bus company
and any information that might lead to their identification.
[3]

The names of the victims are, by statute, suppressed. The summary of facts

referred to certain victims by an initial. To avoid potential identification of any
victim, I make an order now that there is to be no reference to an initial associated
with a particular victim’s name in any publication relating to these proceedings.
[4]

As well as listening to the victim impact report read in Court, I have re-read

the victim impact statements that were presented to the Court before I gave the
sentence indication.
[5]

I acknowledge the courage it has taken for all parents to revisit how they

came to learn of this offending and the devastating effect this had on them. Mr
Burrett, you have read the reports. All these parents had particular demands and
stresses in caring for their children. One family was dealing with the most tragic of
circumstances. You knew about those circumstances but it did not deter you from
your offending with their daughter.
[6]

I also acknowledge the care which parents took not to communicate with

their children in a way that could potentially prejudice the Police investigation and
how difficult this must have been for the parents. As one parent has said, “as
parents, what we wanted to do was talk to her and comfort her, but we couldn’t”.
[7]

I also acknowledge the way in which parents have chosen to reduce the

ongoing effects of the offending by restricting, as best they can, the people who
know about what happened to their children so as to avoid the continued
victimisation of their children. I recognise how one parent was able to tell me how
her daughter was involved in certain concerning behaviour when the offending was
occurring but how this behaviour has stopped as time has passed and she has been
away from you. Attempting to maintain normality for these children, given the
background of your offending, must have been, and continues to be, hugely
demanding for these families, especially in the context of the intense media interest
in this case.

 [8]

I note also that certain parents have been able to acknowledge the offending

involving their children, as one mother put it “at the lower end of the scale”. Not
surprisingly, her attitude was that your conduct, even in that regard, was still totally
inappropriate and despicable.
[9]

I acknowledge the way in which parents have, despite this offending, still

been able to acknowledge all that their children have achieved and are capable of.
As one parent put it “I do not want the defendant’s actions to permanently damage
my girl. She has the ability to lead a wonderful life and I want to ensure that she
does”.
[10]

Another parent said that, although their loss was huge, their daughter’s loss

more, she had some small delight in knowing that one little disabled girl had told on
him and that one day she would know how brave she was.
[11]

I have four reports from a psychologist. These all relate to the effects of the

offending on children, all of different ages, between five and 12, at the time of the
offending. One of those reports referred to the way a young girl’s behaviour had
changed at the time of the offending, of her becoming disruptive at school and at
home, of her having trouble sleeping and having nightmares and of her still suffering
from flashbacks at random moments. Another report referred to the way a daughter
appeared to deliberately try to cause herself pain and say, over the years of the abuse,
she was going to kill herself or that her family did not love her. Several other
victims suffered physical infections. One report referred to a child having become
disillusioned with the world and mistrustful of the true intentions of adults.
[12]

The victim impact reports also refer to the effects this offending has had on

parents, the way in which they feel they have let their children down, even though
they and you were in no way to blame, the way a number have become fearful for
their children’s future and the way they have lost the ability to have trust and have
confidence in other people.1 As one parent put it, the effects of this offending on
them as parents would be with them forever.

1

The term “they and you” was used to address victims and their families.

 [13]

I recognise that those providing reports, and myself, can only use words to try

and describe the effect which this offending has had. Words must be inadequate. It
is the victims and families who live with the consequences but I do recognise that
parents will want to ensure their children do not have to live their lives as victims,
just as those parents with disabled children wanted to ensure their children will have
all the opportunities that could be available to them.
[14]

There has not just been harm to the victims. As I have described, there has

also been harm to their families. Offending such as this is also so shocking and
abhorrent, it can have a rippling effect which goes far beyond the immediate victims
and their families, causing other people to lose confidence in the way they might
want to interact with children, the confidence which they have in people such as
teachers or others who must have children in their care. I accept that this offending
will have been painful for those involved with the schools at which these children
attended and also the company which employed you as a driver after obtaining a
report from the Police confirming, as we know was the case, that you had no
previous convictions.
[15]

The consequences of this offending were a major factor which I took into

account when giving my earlier indication.
[16]

Mr Burrett, your counsel advised me at the time of the indication, and he has

advised me again of this today, that you had read those reports and, through counsel,
wanted to express your remorse to the parents. It is most concerning that this was
not a sentiment which was evident in the discussions you had with the probation
officer who prepared the pre-sentencing report.
[17]

Your offending with children in a caretaker’s shed at their primary school

occurred with nine children on a number of different occasions between 1 February
2013 and 23 February 2015 when your contract as a caretaker with the school was
terminated. I note you had been employed as a casual relief teacher at that school
during 2012. In the summary of facts, there is no suggestion that you were involved
in offending over that time. Your offending at the school involved nine different
girls, aged generally between 5 and 12, mostly a little older than aged 5. As an adult

 in your 60’s, you could not reasonably have thought for one moment that these
children were consenting to what you were doing to them.
[18]

You have pleaded guilty to two charges of indecent assault involving disabled

children who you were transporting on a particular bus which had been as part of a
contract to ensure these children could attend a normal school. You were employed
in that position from 12 April 2013 until you were stood down on 24 March 2015.
During that time, you sexually violated a very young, severely disabled girl, an event
of which there was evidence only because of the way it was observed by a passenger
sitting behind this victim, a young girl who was able to describe to the Police what
happened.
[19]

The lead offending involves, firstly, the sexual violation by rape on one

complainant. She was raped on multiple occasions over two years. The other
leading offending relates to seven sexual violation by unlawful sexual connection
charges involving five complainants.
[20]

This offending occurred on occasions with each complainant over a two year

period and with some of them on multiple occasions, penetration of a girl’s vagina
with your finger, putting your penis in a girl’s mouth, and penetration of a girl’s
vagina with a vibrator.

With another victim, the sexual violation involved

penetration of the anus. In at least one instance, the sexual violation involved penis
in the mouth to the point of ejaculation.
[21]

Most of this offending occurred in the caretaker’s shed in the school grounds

where you worked as a caretaker. You had fitted the shed with curtains and a lock.
Offending also occurred in connection with your driving a van which took special
needs children to their school.
[22]

You face a charge of possession of objectionable publications. At your home

address you had a computer on which were found a number of objectionable images.
These included pornographic Japanese animation images depicting female children
involved in some of the acts which you were charged with carrying out with
children.

You also had hard copy cartoon depictions showing children being

 sexually violated.

The maximum penalty for this offence is five years’

imprisonment. You are not being sentenced on the basis you filmed or in other ways
recorded what you did to any of the children.
[23]

The probation officer’s report states that you have failed to show any insight

into the long term consequences of your offending, that you do not recognise the
high level of harm that your victims and their families were subjected to. It also
refers to the way you have de-humanised your victims, of your belief that, at least
certain of them, enjoyed sex with adults and were not harmed emotionally and
physically by this. The report said “This cognitive distortion has allowed Mr Burrett
an opportunity to justify his actions.

He did not express concern that he was

violating a normative behaviour by sexually offending against children”, and that
you presented with a high level of denial, which is another trait with which child sex
offenders commonly present. The report said that Mr Burrett “fails to acknowledge
the severity of his deviant sexual proclivities”.
[24]

A paedophile is someone who is sexually attracted to children. Mr Burrett,

the information which is before the Court as to the nature of your offending and your
attitude towards it, show quite clearly that you were and are a paedophile. This
offending did not happen just because of some circumstances you fleetingly found
yourself in. The material you had on your computer showed you had a perverse
interest in sexual activity involving children.

You groomed and manipulated

children into allowing you to indulge in sexual activity with them. Not only were
you someone who was sexually attracted to children but you allowed yourself to
obtain sexual gratification with young children in circumstances that you must have
known were morally repugnant to people generally, including members of your own
family. The offending was of a sort that included the most intrusive of sexual acts. I
note the observation of the psychologist who assisted with victim impact reports that
sexual violation involving penetration is likely to have the most serious and long
term effects on the victims.
[25]

I appreciate that there are many in the community who would be so repulsed

by the nature of your offending and so conscious of the effect it has had on the
victims and their families that their instinctive reaction would be to say that no

 sentence the Court could impose would be too harsh and that the rest of your life
should simply be spent in prison.
[26]

As a Judge, I am however required to sentence you, not on the basis of the

raw emotion which the victims’ families must feel but in accordance with legal
principles that have been set out by Parliament in the Sentencing Act, guided also by
the particular guidance which the Courts, particularly the Court of Appeal, have
given over a number of years.
[27]

The Crown, as you heard from Ms Elsmore, has not asked the Court to

consider preventive detention as a potential sentence. The Court did not ask for the
reports that would be essential to a consideration of such a sentence. With such a
sentence, I would have been required to fix a minimum term of imprisonment but
you would have potentially had to remain in prison until the Parole Board considered
there is no longer a risk to the public that required your continued imprisonment.
With my sentence indication, I said you would be sentenced to a finite term of
imprisonment but with a minimum period of imprisonment of ten years. You are
now aged 65. With the sentences that will be imposed, you will inevitably be at an
advanced age when your sentence of imprisonment ends.
[28]

When I gave you my indication, I said your age and likely circumstances at

the end of the minimum term of imprisonment should mean that there is a low risk of
your offending in a similar way.
[29]

Since then, I have received the pre-sentence report. The information in it

suggests that this particular expectation, while only a possibility, was misplaced.
The report indicates quite clearly that, with your current attitudes and way of
thinking, your risk of harm to others is high. The likelihood of further reoffending is
also currently assessed as high. It says that, if you were to place yourself in a
situation with children and no other protective adult were available, you may very
easily reoffend in a sexual manner. The report advised me, and I accept, that you
will require several years of ongoing intense psychological treatment to reduce the
offending-related factors which resulted in your offending. And, I acknowledge the

 submission which was made by Mr Glover that, with the sentence that is to be
imposed, you will have the opportunity to have that treatment.
[30]

With that information in the report I have received, I accept that, unless there

is a significant change in your thinking, it is most unlikely the Parole Board will
consider it is safe to release you from prison, even subject to parole, after you have
served the minimum term of imprisonment which I said would be appropriate. The
reality is that, unless there is that significant change in your thinking, it is highly
likely you will have to serve the whole of your sentence which means that you would
not be released until you are of a truly advanced age. Even then, if the Parole Board
were of the view that there continued to be a risk of offending, as Ms Elsmore said
for the Crown, the Department of Corrections would be entitled to ask the High
Court to put you under further supervision on conditions that would significantly
reduce the risk you pose to the public and particularly other children.
[31]

Given your age and the protection which will be available for the public

through the sentence which I impose, it remains appropriate for me to deal with you
by way of a finite term of imprisonment, rather than a sentence of preventive
detention.
[32]

The aggravating features of your offending are:
a)

the planning and premeditation;

b)

the vulnerability of the complainants due to their age and, with some of
the complainants, their extreme vulnerability due to their disability;

c)

the huge harm caused to the complainants, as described in their victim
impact statements or the statements from a parent;

d)

the extreme breach of trust involved in your committing this offending
when you were trusted by teachers, pupils and parents to look after
those children who you transported by bus and when you were trusted

 to have the children with you in the school grounds at lunchtimes and
breaks when you were the school caretaker.
Breach of trust is a term which often has to be used with this sort of
offending. Given just how important it is for parents, when they send
their children off to school or put them in the care of a driver who is
taking them to school and how parents would avoid doing anything
which they might think would put their children at risk, describing your
offending as involving a breach of trust seems somewhat glib. The
lives of these families depended on their being able to trust their
children being safe when they were at school where you were the
caretaker and with others when they were on the bus you were driving.
Those teaching at the school where you were a caretaker should never
have had to organise surveillance of the playground on the basis you
might pose a risk to those children. Once you had been vetted as a safe
person to have as a driver, as you were, neither your employer nor the
parents who used the bus service could have been expected to act as if
you could put children at risk. Your offending has thus involved a
gross breach of trust which has had devastating consequences for all
those with whom you were involved.
e)

It is an aggravating feature in regard to the scale of offending with
extended serious abuse over a prolonged period.

[33]

The Crown accept that there are no aggravating features relating to you

personally which could lead to an increase in the sentence that will be appropriate for
your offending.
[34]

At the time of your sentencing indication, your counsel submitted you should

be given credit for your lack of previous convictions. Given the extensive nature of
this offending over a prolonged period, there could be little credit for that. I could
not give you any credit for remorse, given the information which I received in a
report provided to the Court by Dr Porter. I cannot do so now given the information

 which has been made available more recently in the Department of Corrections
advice to the Court.
[35]

The purposes of sentencing, as referred to in the Sentencing Act which I must

have particular regard to, are the purposes of:
(a) holding you accountable for the harm done to the victims and the
community by your offending;
(b) to denounce the conduct in which you were involved;
(c) to deter you or any other person from committing the same or similar
offences;
(d) to protect the community from you.
[36]

In R v AM, the Court of Appeal set out four bands of potential sentences for

sexual violation for sentencing where the lead offence is rape, penile penetration of
the mouth or anus, or violation involving objects.2
[37]

The Court described band three as:3
Appropriate for the most serious offending of this type. [Unlawful sexual
connection] band three will encompass cases which involved two or more of
the factors increasing culpability to a high degree, for example a particularly
young victim or an extensive period of offending. Similarly the band will be
appropriate where more than three of those factors are present to a moderate
degree.

[38]

Band four was described as:
[108] The same sorts of factors that place offending towards the higher end
of band three will apply here but it is likely that the offending in rape band
four will involve multiple offending over a considerable period of time
rather than single instances of rape.
[109] Perhaps the paradigm case of offending within this band is that of
repeated rapes of one or more family members over a period of years as is
illustrated by the present case. Offending of this nature, especially that

2
3

R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
At [120].

 involving children and teenagers will attract starting points at the higher end
of this band is indicated by the authorities discussed in R v S (CA 64/06) and
R v Proctor. Gang or pack rape is another situation which is likely to fall
within this band.

[39]

Given those guidelines, I accept that seven charges involving sexual

violation, either by rape or penile penetration of the mouth, anus or vaginal
penetration with a vibrator, all put this offending within band four for which a
sentence of 16 to 20 years’ imprisonment was appropriate. I accept the submission
of the Crown that the offending, as to unlawful sexual connection involving digital
penetration, put this offending within band three for which the appropriate sentence
would be nine to 18 years’ imprisonment.
[40]

There is no tariff from the Court of Appeal as to the sentences appropriate on

conviction for committing an indecent act on a child under 12 years.
[41]

The Crown acknowledge the importance of the totality principle as

articulated by the Court of Appeal. The final sentence must reflect “the totality of
the offending”. The Court of Appeal have stated that the final sentence must reflect
that “but how that is arrived at is a matter of discretion for the Judge. How it is
made up is less important than the end sentence which is arrived at as being
appropriate for all the offending”.4 The Court of Appeal did note that where there
are multiple victims of offending, the maximum of a 20 year sentence for one
offence is not the maximum available sentence able to be imposed for the series of
offending.

The Crown submitted that the total sentence imposed for the full

offending should exceed 20 years.
[42]

The Crown also submitted that I should impose a minimum term of

imprisonment in the range of 50 to 60 per cent of the sentence but acknowledged that
it could not exceed 10 years’ imprisonment.
[43]

In my sentence indication, I said the appropriate starting point for all this

offending would be a sentence of 26 years’ imprisonment. Against that, I held you
would be entitled to a 25 per cent discount for a guilty plea, meaning the end
sentence would be 19 and a half years’ imprisonment.
4

R v Xie [2007] 2 NZLR 240 (CA) at [16], citing R v Williams CA79/00, 31 May 2000 at [11].

 [44]

That discount was given, not because you would be entering your guilty pleas

at the earliest reasonable opportunity or because it was consistent with you having
genuine remorse for what you had done. That credit was appropriate, firstly because
of the particular value to the state and the community in terms of avoiding the
burden of a continuing prosecution.

These proceedings would have been

exceedingly difficult for all involved. More significantly, there would have been
significant continuing distress and anxiety for the victims and their families. With
your guilty pleas, these families know that your offending has been admitted. They
know that their children and other children will be protected from you. The families
are now able to concentrate on looking after these children and doing everything
they can to ensure they are not further victimised by what happened to them. It is in
recognition of all those benefits that it remains appropriate to discount the starting
point sentence for you by 25 per cent. This means that the end sentence for all your
offending will be 19 and a half years’ imprisonment.
[45]

Mr Burrett, make no mistake, you are receiving that discount and you are

being sentenced on the basis the offending detailed in the summary of facts did occur
and has been admitted by you with pleas of guilty. These proceedings began, as
these charges were brought with your having the presumption of innocence and the
Crown having to prove these charges against you. You have had the advice of
experienced counsel, just as you should have, a role which this Court acknowledges
and respects. You pleaded guilty knowing what the Crown had to prove. You cannot
pretend to yourself that it is otherwise.
[46]

The offending is such that I need also to impose a minimum term of

imprisonment. That is the minimum term of imprisonment before you can even be
considered for parole.

That minimum term is 10 years’ imprisonment.

Given

matters I have already referred to, the present likelihood is that you will be required
to serve a sentence of 19 and a half years’ imprisonment. This means, with credit for
the time you have already spent in prison on remand, it is unlikely you would be
released until approximately 2034 when you will be about 83 years of age.
[47]

Mr Burrett, please stand, on the charges of sexual violation by unlawful

sexual connection or rape (charges 6, 7, 9, 10, 13, 14 and 15), you are sentenced to

 imprisonment for 14 years. On the charges of sexual violation by unlawful sexual
connection (charges 5 and 20), you are sentenced to imprisonment for five and a half
years. These sentences are concurrent with each other but cumulative on the earlier
sentences of 14 years.
[48]

In respect of all those sentences, you are sentenced to a minimum term of

imprisonment of ten years.
[49]

On each of the charges of indecent assault on a child (charges 1, 2, 3, 4, 8, 12,

16, 17, 18, 19 and 21) and on the charge of possession of an objectionable
publication (charge 11), you are sentenced to imprisonment for a period of two years,
those sentences to be concurrent with the earlier sentences for a total of 19 and a half
years.
[50]

The effective sentence is thus 19 and a half years’ imprisonment with a

minimum term of ten years’ imprisonment.
[51]

I make an order for destruction of all electronic items seized from the

defendant containing child exploitative material as well as destruction of all
pornographic videos and hard copy images located in the house and for destruction
of all vibrators seized by the Police.
[52]

[The Judge gives the first warning as relates to the three strikes law.]

[53]

You may stand down Mr Burrett.

Solicitors:
Raymond Donnelly & Co., Christchurch
Rupert Glover, Christchurch.