Director of Public Prosecutions v Boxer (a pseudonym)

[2020] VCC 1209

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised

Not Restricted

 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY BOXER (a pseudonym)

---

JUDGE:	Her Honour Judge M. Sexton
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2020
DATE OF SENTENCE:	7 August 2020
CASE MAY BE CITED AS:	DPP v BOXER (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1209

REASONS FOR SENTENCE

---

Subject:Criminal Law – Sexual Offences              

Catchwords: Indecent act with a child under 16 – incest – threat to kill – attempted incest

Cases Cited:R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – HMcL v R (2000) 174 ALR 1 – Gordon [2013] VSCA 343

Sentence:     TES: 16 years 3 months with a minimum of 13 years to be served before becoming eligible for parole. Registrable sex offender                   

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Devlin	OPP
For the Accused	Mr D. Langton	Adrian Paull Criminal Lawyers

HER HONOUR:

1       At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offences case is prohibited by an Act of Parliament[1].  In my published remarks, a pseudonym will be used for the names of the complainants and the accused, because of the family relationship.

[1] Section 4 Judicial Proceedings Reports Act

2       Geoffrey Boxer[2], in February 2020 you were found guilty by a jury of one charge of indecent act with a child under 16, an offence with a maximum sentence of 10 years’ imprisonment; one charge of attempted incest, an offence with a maximum sentence of 20 years’ imprisonment; two charges of making a threat to kill, an offence with a maximum sentence of 10 years’ imprisonment; and four charges of incest, an offence with a maximum sentence of 25 years’ imprisonment.

[2] A pseudonym

3       You maintain that none of the criminal acts happened, and so there is no remorse shown by you for your offending, nor for the impact on your victims, who were children aged between 8-13 at the time of the offending.

The offending

4       I turn now to outline as briefly as I can the offending for which you are to be sentenced, in a way that is consistent with the jury’s verdicts. I will refer to the complainants by their first names in describing your offending against them when they were children; as they are now adults, I will accord them the respect of referring to them as adults thereafter in these remarks.

5       There are two victims of your offending, your stepson, Andrew Brewster[3] and stepdaughter Tabitha Brewster[4].  Tabitha was not only a child, but has a cognitive impairment. You were in a relationship with their mother for about 5 years, and had a daughter together.

[3] A pseudonym

[4] A pseudonym

6       The family lived in a number of different places, including interstate.  Before the family moved back to Victoria, there were two occasions on which you sexually assaulted Tabitha.  When she was aged 6, you penetrated her vagina with your penis. When she was aged less than 10, you penetrated her vagina with your penis on another occasion. On both occasions, even as a child, she said ‘no’, but you persisted. You are not to be sentenced for those acts, but they provide the context for what later took place in Victoria, and show that your later sexual abuses of her were not isolated acts.  Further, at trial, the prosecution relied on these acts as showing you had an ongoing sexual interest in her. I sentence you on the basis that I am satisfied that you had such a tendency.

7       When Tabitha was aged 10 or 11, the family was living with her older sister in a regional city in Victoria.  When you were alone in the house with Tabitha, you told her you were coming to have sex with her. Despite her saying ‘no’, you proceeded to penetrate her vagina with your penis. That is the subject of Charge 3 of incest.

8       When Tabitha was aged about 12, the family moved to live with another relative in country Victoria.  One night, Tabitha was outside and you came up to her, and played with her breasts under her top. That is the subject of Charge 4 of committing an indecent act with a child.  You told her to come with you, but she refused. You then threatened her that if she told anyone, you were going to kill her family. That is the subject of charge 5 of making a threat to kill. You then took her further into the bush and penetrated her vagina with your penis. That is the subject of Charge 6 of incest. Tabitha again said ‘no’, but you put your hand over her mouth and told her to be quiet.

9       After the family moved to another location in country Victoria, and you were alone in the house with Tabitha, you told her to put on a miniskirt with no underwear. When Tabitha refused, you again threatened to kill her family if she told anyone. That is the subject of Charge 8 of making a threat to kill. You made her put on the miniskirt and then penetrated her vagina with your penis. That is the subject of Charge 9 of incest. When she refused to take off her underwear, you said you did not care, as you were the adult and she was a child.

10      When the family lived at the relative’s house in country Victoria, Andrew was aged between 8 and 10 years. On one occasion, you took Andrew under a bridge near the property, and had him touch your erect penis.  You are not to be sentenced for that act, but it provides the context for what then took place.  You sat down and had Andrew sit on your lap. Both of you had your pants down and you attempted to insert your penis into his anus.  That is the subject of Charge 2 of attempted incest.

11      The family moved to another house in country Victoria, and while living there, you took Andrew to a place called Blue Waters. You took him behind a mound of dirt and there penetrated his anus with your penis. That is the subject of Charge 7 of incest.

The impact of your offending

12      Your offending has had a significant impact on Andrew and Tabitha Brewster, which they clearly outlined in the impact statements read out by the prosecutor at the plea hearing.[5]

[5] Exhibit B - Victim Impact Statements

13      Mr Brewster referred to the range of emotions and impacts your offending has had on him.  From trusting you as a child, to becoming scared of you when the abuse began, to shutting it out and only detailing the abuse years later when his sister’s abuse came to police attention, to being relieved at doing so, to finding that the repercussions of the process have been difficult, such that he has distanced himself from his own family and feels out of place.  Before Mr Brewster had made your abuse known to anyone, he was suffering in silence, with the result that in his teens, he was drinking alcohol to get memories and images out of his head, which had some bad outcomes for him. This recourse to alcohol returned during the legal process and he has suffered badly from anxiety, but feels lucky to have been supported through this process. Mr Brewster realises now that he has never allowed people to become close friends and he has a very limited close circle.

14      Ms Brewster referred in her statement to the effect your abuse of her has had on her mental health.  She is currently on medication and is being counselled. She suffers from flashbacks of the abuse and has disturbed sleep as a result.  While you were still in the community, before being remanded in custody, she lived in fear of seeing you and of you knowing where she lived. There has been conflict, she says, with her sister, by which I take her to mean your daughter, and a struggle to have a normal relationship.  She has always had difficulty trusting people, and knowing the right people to associate with, and finds herself withdrawing from others and questioning her relationship with them.

15      Both Mr and Ms Brewster referred to the impact on them as parents, and the flow on effect of your abuse of them to the next generation, their children. Not only does this bring up memories for each of them, but they are so protective of their children that it increases their anxiety, and they worry that their children will be impacted by living their lives under this protective regime, not understanding the reasons for it.

16      Mr Brewster really summed up the impact for both of them when he said,

“I wish it had never happened. I really wish I could have lived my life as a normal kid. I wonder what my life would have been if this had never happened.”

17      When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[6], and include future harm[7].  In the case of Mr and Ms Brewster, the harm has been long term, serious psychological harm which continues.  I take the impact on them very much into account in deciding the appropriate sentence. 

[6]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]

[7]Adamson v R [2015] VSCA 194, [56]

18      I acknowledge the difficulties for them in reporting the abuse, and in participating in the criminal justice process, through not just one, but two trials.  I also acknowledge their courage throughout that process.  I do wish them both well for the future.

Assessment of your offending

19      Returning to the offending, the commission of sexual offences against a child is always serious, but there are a number of factors that make your offending particularly serious. These are:

20      First, the gross breach of trust in abusing two children who trusted you, and whose mother trusted you, as their stepfather;

21      Next, both were vulnerable because of their age and relationship to you, and  Ms Brewster had the additional vulnerability due to her cognitive impairment;

22      Next, there is about 20 years age difference between you and Mr and Ms Brewster, with Mr Brewster aged between 8 and 13, and Ms Brewster aged between 10 and 13 at the time of the offending for which I am sentencing you;

23      Next, you exploited the vulnerability of each of them by acting on opportunities to offend over a period of years;

24      Next, for Ms Brewster, the offending involved persistence in sexually penetrating her, despite her resistance;

25      Next, by your threats to Ms Brewster, you intended to, and did, prevent her from telling anyone at the time the abuse was occurring, and this had the result that you could continue your abuse of both of them; and

26      Lastly, there is, and remains, a significant impact on Mr and Ms Brewster as I have outlined.

27      On an assessment of all the relevant factors, I find your offending consisted of serious examples of each type of offending. While not objectively the most serious, the offending is serious. I find your moral culpability was high.

Personal circumstances

28      In deciding the appropriate sentence, I must also take into account your personal circumstances. You are now aged 51 years. Your parents separated when you were aged 5 and your mother remarried when you were aged 8. Unfortunately, your stepfather was apparently an alcoholic and committed family violence against you, your mother and a brother.

29      There is evidence, based on research, of a link between exposure to family violence in childhood and the intergenerational transmission of violence as well as drug and alcohol abuse. Children whose formative years are affected are vulnerable to developing long term mental health issues[8], and exposure to family violence in childhood is itself a risk factor for both experiencing and perpetrating family violence[9].

[8] Janet Phillips and Penny Vandenbroek, ‘Domestic, Family and Sexual Violence in Australia: An Overview of the Issues’ (Research Paper, Parliamentary Library, Parliament of Australia, 14 October 2014) 18; Royal Commission into Family Violence (Final Report, March 2016) vol. 2,111

[9] Australian Institute of Family Studies, “Children’s Exposure to Domestic and Family violence: Key Issues and Responses” (December 2015)

30      There has been an impact on your mental health, which, on the basis of the evidence and research I have just referred to, may well have developed, at least in part, from your exposure to alcoholism and family violence as a child.  Further, you abused various substances from your mid-teens, which may also have arisen from your childhood, and the drug abuse inevitably worsened your mental illness.

31      You have a longstanding diagnosis of schizophrenia[10], and you were receiving treatment from mental health services in Queensland where you were living[11], until you attended Melbourne for your trial and were remanded in custody following the findings of guilt by the jury.

[10] Exhibits 2 & 3

[11] ibid

32      You are on medication, and you are being seen as an out-patient in the Corrections system.  You were assessed by Dr Darjee, a psychiatrist, who in his report[12], described your background, diagnosis, and treatment, as well as expressing his opinion about your current mental state, your prognosis, and your risk of sexual re-offending.

[12] Exhibit 2

33      There is no suggestion that your schizophrenia played any role in you committing the offences.  It is however, a matter personal to you that I must take into account now in deciding the appropriate sentence.  At the time of Dr Darjee’s assessment of you in April 2020, your mental state was stable, and he considered you relatively well in terms of positive symptoms, but that you were still displaying some negative symptoms such as hearing voices. Dr Darjee considered your relative stability was likely due to you being on regular anti-psychotic medication, and being free from substance use, both likely because of you being in custody.

34      I accept however, that because of your mental illness, imprisonment is likely to weigh more heavily on you than on others, and that on receiving your sentence today, there may be a deterioration of your acute symptoms, and an increased risk of self-harm initially. These are matters that Corrections Victoria should be aware of.

35      Dr Darjee formed the opinion that while you were clearly able to be sexually aroused by children, both pre-pubescent and pubescent, at the time of the offending, there was insufficient evidence now for him to diagnose paedophilia, principally because you have not offended against other children before or since, the children you offended against were not strangers or unrelated to you, and there is no evidence of you viewing child sexual exploitation material.

36      Accepting that opinion, I cannot sentence you on the basis of a diagnosis of paedophilia, but I do sentence you on the basis that you had an ongoing sexual interest in these two children, as they were, which you acted upon on a number of occasions as set out in the charges for which the jury found you guilty.

37      Using the assessment tools available to him, Dr Darjee assessed you as falling into a below average risk category, with few risk factors being present in recent years. However, he did express the view that you should not be allowed unsupervised access to children or be in a caring role, and I agree.  In any event, because you will be receiving a prison sentence today, you will not be in a position to have access to children for some time to come.

38      Dr Darjee did not consider that you require treatment intervention to address your low risk of reoffending, and thought that your prospects for rehabilitation, in terms of sexual re-offending, are reasonably good.

39      Before I turn to my own assessment of your prospects for rehabilitation, I note other matters in your background. You moved to Queensland with your mother after she left her second marriage, and you remain close to her, and she is extremely supportive of you. After leaving school at 15, you worked wherever you could find work, which meant moving around Australia multiple times.  You stopped working about 20 years ago; according to your counsel, this was due to a degenerative bone disease.  While I note that Dr Darjee said you did not report any significant physical health issues, nothing turns on that. You have been homeless at times, and the relationship of 5 years with the mother of your victims was your most significant relationship.

40      You do have a criminal history between 1988 and 2001 but I consider this record is not relevant to my sentencing of you today. 

41      Your counsel submitted that the opinions of Dr Darjee as to current risk, and the other factors I have referred to, mean that the sentencing objectives of protection of the community, and deterring you from re-offending, have minimal application in your case.

42      I am of the view that the passage of time since these offences were committed does place you at a lower risk of re-offending in the same way, and that if the community that needs to be protected from you, arising from a sexual interest in children, is confined to those in a family relationship with you, then the risk is low, and you are unlikely to re-offend as you will not be in such a position for the foreseeable future.

43      However, you are to be sentenced as a serious sexual offender on Charges 4 - 9, if you receive a term of imprisonment on Charges 2 and 3, which will happen. Being sentenced as a serious sexual offender means the protection of the community from you is the principal purpose for which sentence is imposed despite any finding I make.  That is a mandatory provision, and I have no discretion to remove its status as the principal purpose.  

44      I do take into account the lower risk of you re-offending in the same way in determining whether to direct otherwise than total cumulation for Charges 4 – 9, having regard to your counsel’s submissions, and to the cases that were discussed in submissions[13].

[13]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343

45      I take into account that you have not been in prison before. I also take into account that you are in prison during a time of uncertainty given the COVID-19 pandemic, and that the risk of contracting the disease in prison is a source of anxiety for you. However, I do note that you entered into custody on 10 February 2020 after verdicts of guilty, and so will not have to undergo the quarantine period that Corrections Victoria has in place for those entering custody now.  I also take into account that under Stage 4 restrictions in Victoria, you have no current prospect of receiving personal visits from your mother, who remains a resident of Queensland, and who travelled to Melbourne to support you in your trials.

46      I also take into account that you have been through two trials; the first in 2019 before a different judge resulted in some acquittals, but the jury was unable to agree on other charges, and those charges proceeded in the trial before me in early 2020, resulting in one further acquittal, and eight findings of guilt.

47      Before I turn finally to the sentence, there are two further matters I must deal with. The first is that as a result of my sentence today, you become a registrable sex offender. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act.  You must be otherwise subject to that Act for the rest of your life. Because you are appearing on a video link, I do not require you to sign the acknowledgment of receiving the form advising you of your reporting obligations. That form will be provided to you through Corrections Victoria in due course.

48      The second matter I need to deal with is that you are to be sentenced as a serious sexual offender on Charges 4 - 9, if you receive a term of imprisonment on Charges 2 and 3, which, as I said a moment ago, will happen. I confirm that being sentenced as a serious sexual offender means the protection of the community from you is the principal purpose for which sentence is imposed despite any finding I have made.  That is a mandatory provision, and I have no discretion to remove its status as the principal purpose.  

49      I have had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality[14] for all charges after Charge 3. In order to achieve the purpose of protection of the community, I have the power to impose a sentence greater than is proportionate to your offences.  However, the prosecution do not seek that, and I do not intend to do that, as the sentence can be imposed having regard to other normal principles.

[14]ibid

50      Turning finally to the sentence, the court must denounce your offending, and impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual offending, particularly against children, to whom you were a stepfather, with the grave breach of trust, and damaging effect that has caused on those children, now adults.  Further, by my sentence, I must seek to deter other men from sexual offending against children.  I agree with your counsel that there is less need for my sentence to deter you from re-offending for the reasons that I have outlined.

51      You are convicted and sentenced as follows:

52      Charge 2: Attempted incest – 7 years’ imprisonment;

53      Charge 3: Incest – 10 years’ imprisonment;

54      Charge 4: Indecent act with a child under 16 – 2 years’ imprisonment;

55      Charge 5: Threat to kill – 2 years’ imprisonment;

56      Charge 6: Incest – 10 years 6 months’ imprisonment;

57      Charge 7: Incest – 10 years’ imprisonment;

58      Charge 8: Threat to kill – 2 years’ imprisonment;

59      Charge 9: Incest – 10 years’ imprisonment.

60      You are to be sentenced as a serious sex offender on charges 4, 5, 6, 7, 8 and 9 and I direct that this be entered on to the record.

61 Unless I direct otherwise, total cumulation is required for the sentences on these charges. I have decided to direct otherwise, and allow for less than total cumulation, because the principle of totality still appears to have a role to play despite the terms of s.6E Sentencing Act[15]. For Charges 2 and 3, the principle of totality must be taken into consideration. However, there are two victims of the offending here, and that fact, together with the serious sex offender regime where it applies, must be recognised in the individual sentences I impose and the total sentence overall.

[15]ibid

62      The sentence on Charge 6 is the base sentence. 

63      I direct that 12 months of the sentences imposed on Charges 2 and 3 be served cumulatively on Charge 6 and on each other.

64      For the charges on which you are to be sentenced as a serious sex offender, these are expressed in terms of concurrency, not cumulation, and I direct that twenty-one months of the sentence imposed on Charge 4, eighteen months of the sentences imposed on Charges 5 and 8, and eight years nine months of the sentences imposed on Charges 7 and 9 be served concurrently with the sentence imposed on Charge 6, and on the sentences imposed on Charges 2 and 3, and on each other.  That makes a total effective sentence of 16 years 3 months’ imprisonment. 

65      I direct that you serve a minimum of 13 years before becoming eligible for parole.

66      I declare that you have served 180 days in pre-sentence detention including today.  These will be deducted administratively from your sentence.

67      Now I understand that the way in which the serious sex offender charges have been set out may make it a little difficult for counsel to deal with on the spot.  I will hold off entering these into the records so that counsel can have an opportunity to check those and confirm with my associate but I can tell you that so far as the court's system is concerned, that works out to the total effective sentence that I have indicated.

68      MR DEVLIN:  Thank you, Your Honour.

69      MR LANGTON:  As Your Honour pleases.

70      HER HONOUR:  Mr Devlin, are there any other orders required?

71      MR DEVLIN:  No, Your Honour.

72      HER HONOUR:  Thank you.  I will then adjourn the court.

- - -