Director of Public Prosecutions v Briggs (a pseudonym)
[2023] VCC 1023
•16 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS BRIGGS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 16 June 2023 | |
CASE MAY BE CITED AS: | DPP v Briggs (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1023 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Miss S. MacDougall | |
| For the Accused | Mr G. Davis |
HIS HONOUR:
1 Douglas Briggs,[1] on 31 May of this year you were convicted by a jury of four charges of sexual assault of a child under the age of 16; three charges of sexual penetration of a child under the age of 12; one charge of sexual activity in the presence of a child under the age of 16, and attempt to commit sexual penetration of a child under the age of 16. Those crimes carry maximum penalties of 10 years; 25 years; 10 years, and 20 years respectively.
[1] A pseudonym.
2 Each of those crimes also carries a standard sentence. The standard sentence for sexual assault is four years; for sexual penetration under 12, 10 years; for sexual activity in the presence of a child, four years. There is none for attempted sexual penetration of a child but obviously it would be in the vicinity of about eight if there were to be one.
3 I might also point out that the charge of sexual penetration of a child under the age of 16, as opposed to under 12, carries a maximum penalty of 15 years with a standard sentence of six years. Accordingly, this crime is regarded by Parliament, both in terms of maximum penalty and by standard sentence, as being a far more serious offence than the under 16 simpliciter.
4 Insofar as the correct approach to take in relation to this sentencing factor, that is of standard sentences, I think everybody is agreed that the approach of Champion J in the case of Brown was the correct approach to follow and the Court of Appeal has indicated subsequently that that is so. Accordingly, I take the standard sentence into account as one of the factors to consider in my instinctive synthesis of all the relevant factors.
5 My consideration of the standard sentence is one of these factors reflected in the sentences I impose. The sentence I impose in respect of each charge on the indictment is lower than the standard sentence. Having identified and considered the relevant factors in assessing sentence, including that standard sentence, the objective seriousness of the offending and matters available in mitigation, the sentences that I impose are the sentences I have determined in all those circumstances to be appropriate.
6 You are now 43 years of age. You, in this situation, did not plead guilty.
That is not an aggravating factor. However, it removes what is normally in these circumstances the greatest mitigating factor; that is, one of remorse, the utilitarian benefit of the plea, and acknowledgement to the victim of the offending. You have not a shred of remorse. There is clearly no utilitarian benefit. You have no insight whatsoever into your offending.
7 The defence here was that the child was in fact making it all up and had been put up to doing so by the mother. For reasons I will outline shortly, that was in my view doomed to failure. You apparently have prior convictions but they were not put formally to you. None involve sexual offending in any event, and accordingly I make it very clear that I do not take any form of prior conviction on your part into account in the sentencing process. I note that on no basis do you have any priors for sexual offending and I take that into account as well.
8 You are to be sentenced as a serious sex offender on Charges 3 to 11.
You were acquitted by the jury of Charge 12, which is understandable in these particular circumstances. I am aware that community protection becomes the principal sentencing purpose. I am aware that the sentences are to be served cumulatively unless otherwise ordered.
9 As I have indicated to your counsel, I will be otherwise ordering because of the demands of totality and to avoid, if possible, a crushing sentence. The Crown here do not seek a disproportionate sentence.
10 By reason of the offending, you are also to be placed on the sex offenders register. I advise you that the registration period will be for life and that document will be forwarded to you in custody. The jury acted in accordance effectively with the Crown opening other than for Charge 12. I do not need to go into the clear differences between the nature of that and the other 11.
11 The circumstances were that you were born in 1980 and were between 35 and 40 years old at the time of this offending. You were 42 when you were charged. The complainant - and I will not use her name here; it is not a matter of disrespect; it just saves me from having to anonymise later which we will probably need to do in any event - was born in 2009 and was between the ages of six and 11 years when the offending occurred. She is now 13 years of age.
12 During the time of the offending, she lived with you and her mother at various addresses. I do not have to go through the details of that, other than that you were friends apparently with her father, who passed away, and you then began an intimate relationship with her mother. In any event you have, as I understand it, two children, two other children of that relationship with this complainant victim's mother. Clearly as you were her stepfather that carries the same term as incest and there is no need to go down that path.
13 Between April 2017 and January 2018, the group of you were staying at a hotel in Queensland. As she was drifting off to sleep, she gave her brother a kiss. She then went to give you a kiss but you moved your head and she kissed you on the lips. You said that you had wanted to do that for a long time. On another occasion in Queensland, you were lying between her and her brother on the bed and you rubbed her vagina area over her clothes with your finger.
On another occasion up in Queensland on her birthday she woke to you saying, 'Happy birthday, birthday girl', and then used two fingers to touch her vagina. You then put her hand on your penis and made her masturbate for a few minutes.
14 During the course of this trial there was quite a deal of evidence given about uncharged acts. Those acts obviously are uncharged because they happened in Queensland, but I make it clear that you are to be sentenced for the offences for which the jury has found you guilty.
15 It is clear that on my view, and I find this beyond reasonable doubt and I daresay the jury did, that there were many other occasions where you sexually abused the child. All that means is that these charges are not to be seen as one off in terms, but in fact are part and parcel of an overall course of conduct. Again, as I have already said, you are only sentenced for those for which you have been convicted of.
16 The first group of charges comes on occasions between 1 June and
31 July 2019. Her mother was not present. She was in your bedroom watching a movie. You called her into her sister's room or stepsister's room. You were lying under a sheet on the bed touching your penis. You pulled her towards you, pulled her underwear down. You then pulled your undies or pants off and rubbed your penis against her vagina over her clothes. That is the sexual assault.
17 She said to you, 'Why are you doing this', and you did not answer. Instead, you placed her on top of you and put your penis into her anus; Charge 2 sexual penetration of a child. This caused her to feel sore and bruised. You then grabbed her hips and pulled her on top of you. You rubbed your hands on her chest and kissed her boobs, she said, for 10 or 20 seconds. That is Charge 3, sexual assault. You told her that you loved her and not to tell anyone.
She asked you to stop and tried to get off, but you would not allow her to do so. You stopped when you needed a drink and she returned to her siblings.
18 The second incident, again between those same dates, she was on a mattress in the lounge room in suburban Melbourne with her younger sister. You entered the room and made her masturbate your penis. That is sexual assault of a child under 16 and touched her vagina and digitally penetrated her; sexual penetration of a child. You then got up and left the room.
19 Incident 3, again in 2019 between July and October, and I point out of course these dates have relevance as the child was clearly under 12 no matter what. She was asleep in your bed in suburban Melbourne watching a movie. You woke her up by putting your hands under her pants and started touching her vagina, sexual assault. You pulled her underwear off and pulled yours off as well and then were masturbating your penis. That is sexual activity in the presence of a child.
20 You then pulled her towards you and attempted to put your penis into her anus. That is attempted sexual penetration. You then put her legs over your shoulders and started to try and put your penis into her vagina. That is Charge 10, of attempted sexual penetration of a child under the age of 12. You then pushed her head down and inserted your penis into her mouth, which is sexual penetration of a child under the age of 12.
21 I think I may have said previously that there were in fact two charges of attempted; I may have only mentioned one but in any event while you were doing that you were kissing her on the mouth and inserting your tongue into her mouth, again an uncharged act. It is simply there as showing the nature,
I suppose, of the relationship between her and yourself.
22 She then one day at school in March of 2021 subsequently found out apparently that you were in custody. She essentially made a complaint to a schoolteacher and the matter went from there. She made two VAREs. You were interviewed. I have seen those VAREs obviously and seen them in cross-examination and have seen your interview.
23 In your interview you essentially denied any form of offending. You said you effectively, not necessarily your words, had a wonderful relationship with the child and you could not understand why she said these things and that her mother had obviously somehow or other got her to make them all up. That is a very brief summary of the offending. There is a lot more evidence than that.
24 The nature of the defence was, as I have indicated, that the mother had put the child up to all of this. It subsequently became pretty clear in the evidence - it would be a matter for the jury who obviously found beyond reasonable doubt that she had not - that it would have been virtually impossible for her to have the opportunity to do it, but in any event, I think it is important to read out a portion of the child's evidence. This is a 12-year-old describing something that happened when she was about 10 or 11, and the defence was that she was fabricating.
25 She was asked by the police officer, 'You said he was touching himself. Describe in as much detail as you can how he was touching himself'. She said, 'Moving his hands up and down his own part'. 'On his part?' 'Penis'. 'M'mm, m'mm'. 'Do you have another name for that part?' 'Penis'. 'Penis, is that the right word?' 'M'mm'. 'Would you just kind of - we'll just kind of do this', then if one watches it, she is making a gesture with her right hand in a masturbatory movement moving her hand up and down.
26 She then said, 'And then sometimes squeeze it'. 'M'mm'. 'But I didn't really look at it that much'. 'M'mm, so you didn't look at it that much. Can you describe what his penis looked like when he was touching himself that time?' 'It was kind of like not fully red but when he pulled it down it was kind of like - it seemed like it looked like part - like I don't know if it fully kind of - just like part of it went down and I'm thinking as well it wasn't pink, it was nudey pinky reddish'.
27 The police officer said, 'Pinky reddish?' She said, 'Yeah, m'mm, nude pinky reddish, not as much pink, a little bit, yeah. I think it was that colour because it was - at times he would get me to do it for him and it felt like - inside of it, it felt like - he put it there and it felt like - I've got one way to describe it but it's not exact - exactly the same'. 'Yeah'. 'It's like the - like under the tongue'. 'M'mm'. 'It doesn't feel the exact same though, though - and he had his balls and then the hair around it'. 'Yeah. So you said he had hair around his balls?' 'Yeah'.
28 'What colour hair?' 'Pretty sure it was black'. 'M'mm'. 'I couldn't - yeah'. 'You said sometimes he would get you to do it for him. What did you mean by that?' 'Like move my hand up and down on his penis'. That is what she said as a
12-year-old to a police officer. There is no way known that child is making that up. She is clearly a little girl describing something she does not really understand.
29 The situation is that I have a number of victim impact statements before me. The victim impact statement of her mother, which indicates the anger that she feels about all this, it seems to me that in the circumstances here there is obvious extreme anger between you and her mother. I am not in any way, shape, or form buying into that. I simply say that I am satisfied beyond reasonable doubt that the mother did not even know of these allegations until such time as she was told by DHS, and I certainly take her impact statement into account.
30 There is also an impact statement from her nonna, that is her grandmother, and she describes the pain. She describes the pain of having lost her son earlier on, who was supposedly your friend. She said that her granddaughter had lost her father at the age of two and she has now lost the innocence of being a child. She said:
'I feel guilty that I couldn't protect [Skye][2] from [Douglas Briggs]. Never in my wildest dreams did I think that a father of three girls (at the time) and my son's friend could do this to my granddaughter. I constantly feel paranoid and worried.
I worry about my grandchildren's safety and wellbeing all the time. I don't trust anybody any more'.
[2] A pseudonym.
31 At around the time of the offending the young victim had been with her grandmother and also with her paternal aunt. Her aunt, who is in my view a very impressive person who gave evidence during the course of the trial, she had this to say:
'I'd also like to mention my late father [Phil Carlson],[3] who passed away in
June 2021. He was aware of this crime before he passed away and he was extremely disturbed, angry, and hurt by it. It was causing so much grief and pain and I often reflect on this. I felt the need to mention both my late brother and father in this victim impact statement because I not only live with my own emotional strain (because of this crime) but also feel their anguish and disgust. I also feel my mother's ongoing pain and try to support her as best I can. Before my brother passed away, he asked me (his only sister) to always look after [Skye] if anything were to happen to him. I was unable to fulfil my brother's dying wish. I carry so much guilt with me since knowing about this crime, that I was unable to protect her from [Douglas Briggs]'.
[3] A pseudonym.
32 The young victim herself had a number of things to say which are absolutely typical of the consequences of this sort of offending, and why the law demands and the community demands condign punishment for it. She had to say, amongst a number of other things:
'A father is supposed to protect a child and make them feel safe and confident. I believed that you loved me but this is not what you did. You betrayed my trust. I was sick of holding a burden that only protected you, the very thing you were supposed to be doing for me. You said that you were the only person that would love me, that I was unlovable to everybody else. You told me that you did this to prove that you loved me but all I felt was pain and shame. Now I have realised how bad it was I can't sleep at night and wake up feeling anxious and tired.
'I feel like a part of me was stolen and it's hard to find joy in things I used to love. The trauma has left me feeling broken and damaged, and I worry that I'll never fully heal emotionally, socially, mentally, and physically. I always feel angry and frustrated and I constantly feel like I should have been able to protect myself, then I feel guilty. I know it wasn't my fault, people tell me this, but it's hard to really believe it and then I replay it again, trying to find a way that I could have protected myself and stopped it'.
33 She goes on later to say:
'I was just a little blind kid. My family was supposed to make me feel secure. I should have been playing with my friends and thinking about dolls; instead I was always terrified, apprehensive of what would happen next. You warned me not to tell anyone, it needed to remain a secret. It made it impossible for me to understand what was going on. I feel as though I have no voice left because of what you did to me. I was too afraid to admit it, too embarrassed. I'm still afraid right now that later I'll get wounded by other individuals. Even if you are in prison, I am afraid you will still try to harm me'.
That is the devastating effect this sort of offending has. For anybody with any doubts, that child is not making that up, in no way, shape, or form.
34 The circumstances of this sort of offending have been described by the Victorian Court of Appeal and many other courts, I would imagine, in the strongest terms. Whilst you are not convicted of incest, the maximum penalty is the same. The comments of Marks J in The Queen v Sposito many years ago are apt here:
'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child; the physical and psychological subordination of the child to the perverted indulgences of the adult; the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim'.
35 Some years later in the DPP v G, again the Court of Appeal said:
'This Court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes. The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care, and the community is entitled to expect those who exercise such care will not abuse the trust and confidence reposed in them by those in their charges. Parents, and those in loco parentis'
- or stepparents is perhaps the modern expression -
'who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished'.
Again, the subsequent cases that follow those I do not need to go into here.
36 That is the background upon which these sentences are to be imposed. I was given material on your behalf by your counsel who gave me some very succinct, if I might say so, and very helpful submissions on your behalf. There are a significant number of character references placed before me. One of the difficulties with those character references is that a lot of them seem to be operating on the basis that what you have been convicted of is total fabrication. That is not the case. There is not the slightest doubt about that.
37 However, still taking those references as best I can on your behalf, it is quite clear that throughout your work life you have been a good father to your natural children; it is the stepchild who has been the problem. I do accept that you have been a good father to them. I accept that they have been given stable upbringings. I accept that you have had stable accommodation. I accept that you have got a good work record. I accept all those matters on your behalf.
38 I have already mentioned to your counsel that there will be very significant concurrency in these matters. I also understand from your counsel, and accept, that you have been unwell in gaol, that you have high blood pressure and you are on medication. I therefore take that into account as well.
39 It is pointed out that you have had two significant relationships, an initial one that went for 15 years and you still have contact with that partner. You have three daughters of that relationship, and you then had the relationship with the mother of this victim and as I have indicated, there are four children of that relationship, it seems to me, including your stepdaughter.
40 I do not need to go into the detail of you having gone to gaol and the like; that has got nothing to do with sexual offending, and since your release from prison in June of 2021 your counsel tells me, and I accept, that you have lived an industrious, drug free life; that you have been employed by a car company; that your eldest daughter and your brother work at that company, and you are distressed by what will occur to yourself and your children upon your inevitable incarceration. I do take all those matters into account.
41 There is no suggestion of undue hardship to any other person by reason of your incarceration. The prospects of your rehabilitation are really up to you. It will be a matter for the authorities what they make of your total lack of insight into this offending and your refusal to acknowledge it. That will be a matter for them. The risk of you reoffending in this way with a stepdaughter, I would think, would be relatively low after this has all occurred, but again that will be a matter for others later on.
42 I am very careful in these sentencing circumstances to be aware of totality and to avoid, if possible, a crushing sentence. It is however a situation where the offending is very serious indeed, occurred over a significant period of time to a very young girl who was very much in your care and, as you would have it, at your disposal. There is very little else I think I can say insofar as all this is concerned.
43 There is no psychological material before me. In circumstances such as this, where there is a flat denial of the offending, that is rarely of assistance and your counsel is to be commended for not trying to drag something out of what would not have existed.
44 In any event taking all of those matters into account, and sentencing according to the principles as best I can, on
(a) Charge 1, 18 months.
(b) Charge 2, eight years.
(c) Charge 3, 18 months.
(d) Charge 4, 18 months.
(e) Charge 5, eight years.
(f) Charge 7, 18 months.
(g) Charge 8, 18 months.
(h) Charge 9, six years.
(i) Charge 10, six years.
(j) Charge 11, eight years.
45 I direct that the sentence on Charge 1, the sentence on Charge 3, the sentence on Charge 4, the sentence on Charge 7, the sentence on Charge 8, the sentence on Charge 9, and the sentence on Charge 10 be served concurrently with each other and with the head sentence.
46 I direct that three years of the sentence imposed on Charge 5, and three years of the sentence imposed on Charge 11 be served cumulatively upon each other and upon the sentence imposed on Charge 2. That gives a total effective sentence of 14 years, of which you serve a minimum term of 10 years before becoming eligible for parole.
47 I have tried to do this in as simplified a way as possible. Obviously, many other combinations could have achieved the same result. I say that 16 days be reckoned as having been served under this sentence.
48 There are no other orders I have to make, Mr Davis, or Miss MacDougall?
49 MR DAVIS: No, Your Honour.
50 HIS HONOUR: Thank you.
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