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Boxer (a pseudonym) v The Queen

Boxer (a pseudonym) v The Queen

Case [2021] VSCA 300 4 November 2021

Appeal

Sentencing

Criminal Liability

Principle of Totality

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0181

GEOFFREY BOXER (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of the complainants.

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JUDGES:	Niall and Walker JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2021
DATE OF JUDGMENT:	4 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 300
JUDGMENT APPEALED FROM:	DPP v Boxer (a Pseudonym) [2020] VCC 1209

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CRIMINAL LAW – Appeal – Sentence – Four charges of incest, two charges of threat to kill, one charge of indecent act with child under 16, one charge of attempted incest – Total effective sentence of 16 years, three months’ imprisonment with non-parole period of 13 years – Whether sentence manifestly excessive – Whether judge mischaracterised seriousness of offending – Lack of aggravating features – Presence of mitigating factors – Sentence inconsistent with current sentencing practices – Principle of totality – Sentence outside range reasonably open – R v Kilic (2016) 259 CLR 256, considered – Appeal allowed – Resentenced to 13 years, nine months’ imprisonment with non-parole period of 10 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Poole	Adrian Paull Criminal Lawyers
For the Respondent	Mr N Hutton	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WALKER JA:

The applicant, ‘Geoffrey Boxer’, was charged with one charge of attempted incest, five charges of incest, one charge of indecent act with a child under 16, and two charges of making a threat to kill. On 10 and 11 February 2020, he was convicted by jury verdict of charges 2–9 and acquitted of Charge 1 (a charge of incest). He was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

2. Attempted incest 20 years 7 years 12 months

3. Incest 25 years 10 years 12 months

4. Indecent act with a child under 16 10 years 2 years 3 months

5. Make threat to kill 10 years 2 years 6 months

6. Incest 25 years 10 years 6 months Base

7. Incest 25 years 10 years 15 months

8. Make threat to kill 10 years 2 years 6 months

9. Incest 25 years 10 years 15 months

Total effective sentence: 16 years and 3 months’ imprisonment

Non-parole period: 13 years

Pre-sentence detention declared: 180 days

Section 6AAA statement: N/A

Other relevant orders: Sentenced as a serious sexual offender on charges 4, 5, 6, 7, 8 and 9. Order for registration under s 34 of the Sex Offenders Registration Act 2004 with reporting period of life.

The applicant seeks leave to appeal against sentence on the following ground:

The individual sentences imposed on the charges of incest and attempted incest (charges 2, 3, 6, 7, 9) together with the orders for cumulation, are manifestly excessive and resulted in a total effective sentence and non-parole period that is manifestly excessive.
Particulars:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boxer (a pseudonym) v The Queen

Details

AGLC: Geoffrey Boxer (a Pseudonym)[1] v The Queen [2021] VSCA 300
Case: [2021] VSCA 300
Decision Date: 4 November 2021

CaseChat Overview and Summary

Boxer, a pseudonymous appellant, was convicted on multiple charges including incest, threats to kill, and indecent acts with a child under 16, resulting in a sentence of 16 years and three months imprisonment, with a non-parole period of 13 years. The case was heard in the High Court of Australia, where the appellant challenged the severity of the sentence. The primary legal issues addressed were whether the sentence was manifestly excessive, whether the trial judge mischaracterised the seriousness of the offences, and whether the sentence was inconsistent with current sentencing practices. The court noted the absence of significant aggravating factors and the presence of mitigating circumstances, which were not adequately considered. The principle of totality was also considered, as was the range of reasonably open sentences.

The court examined the trial judge's characterisation of the offences and found it to be excessive, particularly in light of the principle of totality and the lack of substantial aggravating factors. The High Court held that the sentence was outside the range of reasonably open sentences, given the current sentencing practices in similar cases. The court referred to the precedent set in R v Kilic, where it was established that the total effective sentence should reflect the cumulative seriousness of the offending, taking into account mitigating factors. In this case, the cumulative effect of the offences, while serious, did not warrant the length of the sentence imposed. The court concluded that the original sentence did not appropriately balance the seriousness of the crimes with the mitigating factors present.

The appeal was allowed, and the appellant was resentenced to a total of 13 years and nine months imprisonment, with a non-parole period of 10 years. This decision reflects the court's emphasis on adhering to the principles of sentencing proportionality and totality, ensuring that the sentence is appropriate to the nature and circumstances of the case.

Orders