Director of Public Prosecutions v Briggs (a pseudonym) (No. 3)
[2025] VCC 510
•11 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS BRIGGS (a pseudonym) |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 March 2025 | |
DATE OF SENTENCE: | 11 April 2025 | |
CASE MAY BE CITED AS: | DPP v Briggs (a pseudonym) (No. 3) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 510 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Re-trial - Verdict-guilty – 11 charges – Sexual penetration of a child under the age of 12 – sexual assault of a child under the age of 16 – attempt to commit sexual penetration of a child under the age of 12 – sexual activity in the presence of a child under the age of 16 – single complainant – three incidents – stepfather – victim impact statements – family hardship-exceptional circumstances threshold not met – rehabilitation-good – principle of totality – standard sentence offences – previous sentence-upper limit.
Legislation Cited: Crimes Act 1958 (Vic); Crimes Amendment (Sexual Offences) Act 2016; Sentencing Act 1991 (Vic); Sex Offences Registry Act 2004 (Vic).
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; R v Wirth (1976) 14 SASR 291; DPP v Briggs (a pseudonym) [2023] VCC 1023; Briggs (a pseudonym) v The King [2024] VSCA 80; The Queen v Kilic [2016] HCA 48; Lombard (a pseudonym) v The King [2016] HCA 48; DPP v Short [2006] VSCA 120.
Sentence: Total effective sentence – 12 years’ and 6 months’ – Non parole period – 8 years’ 9 months’ – Pre-sentence detention – 488 days’ – Sex offender reporting – life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. DEVLIN | Office of Public Prosecutions |
| For the Accused | Mr S. ANDRIANAKIS | Pica Criminal Lawyers |
HIS HONOUR:
1Douglas Briggs,[1] in November of 2024 in a trial before me, you faced 12 charges. You were found not guilty by direction on Charge 5.
[1] A pseudonym.
2On 11 November 2024, after a seven day trial, you were found guilty by a jury of the following eleven charges:
(a) Seven charges of sexual assault of a child under the age of 16 (Charges 1, 3, 4, 5, 6, 7 and 12), maximum penalty of 10 years;[2]
(b) Two charges of sexual penetration of a child under the age of 12 (Charges 2 and 11), maximum penalty of 25 years;[3]
(c) One charge of sexual activity in the presence of a child under the age of 16 (Charge 8), maximum penalty of 10 years;[4] and
(d) Two charges of attempt to commit sexual penetration of a child under the age of 12 (Charges 9 and 10), maximum penalty of 20 years.[5]
[2] Contrary to s 49D(1) of the Crimes Act 1958 (Vic) as amended by the Crimes Amendment (Sexual Offences)
Act 2016 (‘Crimes Act’).
[3] Ibid s 49A(1).
[4] Ibid s 49F.
[5] Ibid s 321M and s 49A(l).
3All of your offending was against the single complainant, Skye Perez.[6]
[6] A pseudonym.
4It is now my role to sentence you for your offending following the trial. The task of a sentencing judge following a jury verdict is clear: I am obliged to determine the factual basis upon which you are to be sentenced; the facts I find must not be inconsistent with the jury's verdict; and any adverse findings must be made to the criminal standard.[7]
[7] Cheung v The Queen (2001) 209 CLR 1, 19 [38].
Factual Circumstances
5The offences of which you were convicted occurred in Victoria between 1 June 2019 and 31 October 2019.
6At the time of the offending, you were aged 39. Skye was 11 years old.
7You became a prominent figure in Skye’s life in 2011 after her father who was your friend, Christopher Perez,[8] passed away. In 2013, you began a relationship with Laura Jones,[9] Skye’s mother and Christopher’s widow.
[8] A pseudonym.
[9] A pseudonym.
8Your offending occurred on three different dates which I will refer to as incidents 1, 2 and 3.
Incident 1
9Between 1 July and 31 July 2019, at your home in Sunshine, you called Skye into your daughter Kelly’s[10] room where you were touching your penis. You pulled Skye towards you and pulled her underwear down. You then pulled your underpants off and lay on top of her on the bed. You began to rub your penis against her vagina over her clothes (Charge 1).
[10] A pseudonym.
10Skye asked ‘why do you do this?’ but you did not answer her. You placed her on top of you and put your penis into her anus. This caused her anus to feel sore and bruised (Charge 2). You then began to rub your hands over her chest and kissed her breasts for 10 to 20 seconds (Charge 3). Whilst you did this, you told Skye that you ‘loved her’ and ‘not to tell anyone’.
11Skye told you stop multiple times and tried to get off you, but you grabbed her and pulled her back on top of you. You stopped when you needed to get a drink and Skye pulled her ‘pants and undies’ up and returned to her siblings.
Incident 2
12Between 1 June and 31 July 2019, Skye was on a mattress in the loungeroom of your home with her younger sister. You entered the room and made Skye masturbate your penis (Charge 4). As Skye was doing this, you touched her vagina under her clothes (Charge 6). You then got up and left the room.
Incident 3
13Between 1 July and 31 October 2019, Skye was asleep in your bedroom after having watched a movie. You woke her up by putting your hands down her pants and touching her vagina (Charge 7). You pulled off your and Skye’s underwear and began masturbating your penis (charge 8).
14You then pulled Skye towards you and attempted to put your penis into her anus (Charge 12). You then put Skye’ legs over your shoulders and tried to put your penis into her vagina (Charge 10).
15After this, you pushed Skye off the bed and into a half-kneeling position. You pushed her down and inserted your penis into her mouth (Charge 11). You then made Skye lie down whilst you got on top of her, moving up and down whilst kissing her and inserting your tongue into her mouth (uncharged act). You then got up and went into the kitchen.
Objective Gravity and Moral Culpability
16It should go without saying that a man in your position should have protected Skye from harm. Rather than doing that, you took advantage of Skye over a period of months. Her mother had entrusted you with Skye’s care.
17This was egregious offending. Apart from the clear breach of trust that it involved, other aspects that are relevant to the classification of the offending include that it occurred in places where Skye should have felt safe; you did not use a condom and therefore exposed Skye to the risk of disease; she was very young at the time and the age gap between you was considerable.
18Given your position as Skye’s step-father, your moral culpability is very high indeed.
19The most serious of the individual offences are those involving penetration and attempted penetration.
Victim Impact
20The court received the following four victim impact statements:
(a) Skye Perez dated 8 June 2023;
(b) Dorothy Lewis[11] (Skye’s paternal aunt) dated 8 June 2023;
(c) Laura Jones (Skye’s mother) dated 8 June 2023; and
(d) Kimberly Perez[12] (Skye’s grandmother) dated 8 June 2023.
[11] A pseudonym.
[12] A pseudonym.
21Skye states that you betrayed her trust. She says that you told her that your conduct was proof that you loved her. Skye feels ashamed and embarrassed about what happened. She concluded her statement as follows:
I was just a little blind kid. My family was supposed to make me feel secure. I should have been playing with 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. I worry that I’ll get wounded by other individuals. Even if you are imprisoned, I am afraid that you will still try to harm me.[13]
[13] Victim Impact Statement written by Skye Perez on 8 June 2023, 5.
22Each of the other statements eloquently and movingly describes the profound impact of your offending on the adults in Skye’s life that genuinely love her. They make for difficult reading.
23I have taken into account the impact of your offending on these four victims in sentencing you.[14]
[14] Sentencing Act 1991 (Vic) s 5(2)(daa).
Personal Circumstances
24You are currently 45 years old.
25You grew up in Melbourne’s western suburbs. You are the third of five children, with two sisters and two brothers. Your parents apparently didn’t work which put the family through significant financial stress.
26Your father was both physically and psychologically abusive towards your mother and your siblings.
27Your parents separated when you were six, where you were mainly in your mother’s care but when you displayed problematic behaviour she would send you to live with your father. This impacted your schooling and as a result, your education suffered.
28You completed high school until year 11 and left school during year 12, to commence a refrigerator apprenticeship. You worked for this employer for 14 years before they went into liquidation.
29When you were 14, you suffered multiple fractures when the motorbike on which you were a passenger was struck by a car. You had to complete extensive rehabilitation following the accident and this led to your first period of depression.
30You used to smoke cannabis while in secondary school and were influenced by your father who was a heavy cannabis smoker throughout your childhood. You commenced using methamphetamine after your father’s death in 2014, but this has reduced in the past two years, with negative urine tests being provided to the court.
31You have had two significant relationships, the first was with your ex-partner who you met when you were 16. You moved in together at 21 and remained together for 15 years. You had three children together, being Kelly,[15] Lisa[16] and Gaby.[17] You separated in 2012 but she remains supportive of you and continues to visit you in prison.
[15] A pseudonym.
[16] A pseudonym.
[17] A pseudonym.
32As previously mentioned, you were in a relationship with Laura Jones. You are the godfather to her son. During your relationship you had three children together.
Matters in Mitigation
Family Hardship
33In comprehensive and helpful submissions, your counsel Mr Andrianakis submitted that the sentence the court imposes should be mitigated due to hardship that a custodial sentence will cause in two respects:
(a) The hardship to you due to being separated from your six children; and
(b) The hardship to your children of being separated from their father.
34I accept that being separated from your children will cause you anxiety and will make your time in custody more difficult than would otherwise be the case. Based on the letters that they have written to the court, I accept that you have played an important role in the lives of Kelly, Lisa and Gaby. You have played a lesser role in the lives of the children you share with Ms Jones.
35I have taken into account this hardship and have moderated the sentence to a modest extent as a result.
36As your counsel acknowledged, the second form of hardship is treated differently by the law. It will only be in exceptional cases that third party hardship will be taken into account by way of mitigation.
37Your counsel relied on the report of psychologist Maria-Jayne Lee dated 5 December 2024. Ms Lee has treated Kelly and Lisa since 2018 and Gaby since 2023.
38According to Ms Lee, all three girls experienced a decline in their mental health when you were previously incarcerated. Kelly is ‘extremely depressed’; Lisa has suffered panic attacks and Gaby has suffered from severe depression and anxiety.
39Ms Lee opines that all three girls ‘will experience an exacerbation of their mental health conditions by the absence of their father’.
40I accept the opinions of Ms Lee noting they were not challenged.
41However, the bar to be surmounted to enliven ‘family hardship’ is a high one for the reasons explained by Wells J in R v Wirth:
Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court ... . It seems to me that courts would often do less than their clear duty - especially where the element of retribution, deterrence, or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.[18]
[18] R v Wirth (1976) 14 SASR 291, 296.
42The rare cases where courts have found that ‘exceptional circumstances’ exist so as to mitigate the sentence imposed on this ground include cases where a sole parent is to be imprisoned effectively leaving their children parentless. Yours is not such a case as the three children to whom I have referred will be in the care of their mother.
Health
43I have taken into account in your favour the physical health challenges you experience including chronic pain as a result of a motorcycle accident as well as high blood pressure for which you are medicated. While these conditions should be able to be managed in prison, I accept that they will render your time in custody more difficult than would be the case if you were in perfect health.
44Your counsel also referred to your family history of cardiac disease and your experience of chest pain while previously incarcerated in November 2024. I note in this regard a letter dated 21 November 2024 from Dr Spanos of the Cardiology Clinic at St Vincent’s Hospital where you were treated which states that your chest pain ‘is atypical and likely noncardiac’.
Delay
45There has been some delay in the finalisation of this case. The offending occurred in 2019 and you were interviewed and arrested in July of 2021 before being charged in February 2022. Your first trial was in May 2023 and you were sentenced by Judge Smallwood in June 2023.[19] After a successful appeal on 1 May 2024,[20] you faced a re-trial which concluded on 11 November 2024 when you were remanded in custody. An initial plea hearing scheduled for 17 December 2024 was adjourned at your request to 28 March 2025.
[19] DPP v Briggs (a pseudonym) [2023] VCC 1023 (‘Briggs No.1’).
[20] Briggs (a pseudonym) v The King [2024] VSCA 80 (‘Briggs No. 2’).
46I accept that the delay since you were first arrested is both considerable and largely not attributable to you. In part the delay is due to the effects of the pandemic on the operations of the court between 2020 and 2022.
47You have not further offended during that period and that is relevant to my assessment of your prospects of rehabilitation. I accept that the matter has been hanging over your head and this has added to the stress you have experienced. You are entitled to a modest amelioration of sentence accordingly.
Rehabilitation Prospects
48You have a very good work history, a lack of relevant prior convictions and strong family support. You have no history of alcohol or drug abuse. I have taken into account the character references filed on your behalf.
49In these circumstances, I consider your rehabilitation prospects to be good. I have taken this into account in the setting of your non-parole period.
Statutory sentencing requirements
50The sexual penetration offences are category 1 offences. The court is required to impose a term of imprisonment with a non-parole period of at least 60% of the head sentence.[21]
[21] Sentencing Act (n 9) s 5(2G), s 11A.
51As I am imposing a custodial sentence on both charges 1 and 2, you are to be sentenced, in relation to charges 3 onwards, as a ‘serious sexual offender’.[22] Protection of the community is the principal sentencing purpose.[23] Further, the sentences must be served cumulatively unless the Court directs otherwise.[24] However, the principle of totality still applies.
[22] Ibid s 6B, 6C.
[23] Ibid s 6D.
[24] Ibid s 6E.
52All of the charges other than charges 9 and 10 are ‘standard sentence’ offences. The standard sentence is the sentence to be imposed for an offence of mid-range seriousness taking into account only the objective factors.[25] The standard sentence is one of a number of factors to which the court must have regard.
[25] Ibid s 5A.
Current Sentencing Practices
53The court is required to have regard to current sentencing practices.[26] This is to promote consistency in sentencing.[27]
[26] Ibid s 5(2)(b).
[27] The Queen v Kilic [2016] HCA 48.
54The court was provided with summaries of a large number of cases in this court and the Court of Appeal concerning sentencing for sexual offences against children. Because the cases span such a wide variety of conduct, this information has been of very limited assistance.
55In the very recent case of Lombard (a pseudonym) v The King,[28] the Court of Appeal (Beach JA) refused leave to appeal against sentences imposed by a Judge of this Court in a case bearing some similarities to yours.
[28] [2025] VSCA 51 (‘Lombard’).
56The offender in Lombard was convicted of one charge of sexual penetration of a child under that age of 12 years and three sexual assaults of a child under 16 years of age after a trial. The maximum sentence for the assaults was 10 years and the standard sentence was 4 years.
57The victim of all of the offending was the granddaughter of the offender’s de facto partner and was 10 years of age at the time of the offending. The offender was 80 years of age at the time of the offending.
58Charge one involved the child being touched on her chest under her top. The sentence imposed was imprisonment for 2 years. Charge two, which attracted a sentence of imprisonment for 3 years, involved the child’s ‘vaginal area’ being touched over her clothing. Charge 3, which attracted a sentence of 2 years and 3 months’ imprisonment involved the offender putting his hand inside the victim’s top, touching her on the chest and playing with her nipple.
59The offender was 84 years of age at the time of sentencing and had no prior convictions. He had extensive family support and numerous physical health problems which the Judge accepted increased the burden of imprisonment. There was also a delay of over four years between the offending and the sentence being imposed. The offender demonstrated no remorse.
60In refusing leave to appeal, Beach JA considered that the sentences imposed were ‘very modest’ and could only be explained by the ‘significant matters in mitigation’ of which the most significant was the ‘’[offender’s] advanced years and ill health’.[29]
[29] Ibid 6-7 [30]-[31].
Consideration
61As discussed, this was very serious criminal offending. As is so eloquently expressed by Skye in her victim impact statement, you breached the trust that she reposed in you. You were, for all practical purposes, in the position of Skye’s step-father. You should have looked after her; instead you took advantage of her innocence and youth for your own selfish purposes. Your reprehensible conduct must be condemned by the court in the clearest terms.
62By acting as you did you robbed Skye of her fundamental right to determine with whom and in what circumstances she became sexually active.
63I accept your counsel’s submission that the sentences imposed after your first trial by Judge Smallwood should be regarded as the upper limit of the sentences this court is to impose. It is well established that an offender who successfully appeals should not face an increased penalty if convicted at their retrial lest it appear to the public that the increased sentence contains ‘a retributive element imposed because the accused had successfully appealed…’.[30]
[30] DPP v Short [2006] VSCA 120, 10-1 [30].
64I have also taken into account the difficulty you face in returning to custody after having been granted appeal bail on 1 May 2024 consequent upon your successful appeal
65There is one important difference between the sentencing task that I face when compared with the one completed by Judge Smallwood. It concerns incident two which occurred in the lounge-room at your home in Sunshine.
66At your first trial you were found guilty of a charge of sexual penetration of a child under 12 (charge 5) in relation to this incident as well as a charge of sexual assault of a child under 16 (charge 4).
67However, in the second trial, the charge of sexual penetration resulted in an acquittal by direction because I was not satisfied that the evidence of digital penetration was sufficient to go to the jury. The jury found you guilty of the alternative charge of sexual assault of a child under 16 (charge 6) as well as charge 4.
68As your counsel submitted, the charge of which you were found guilty in this trial carries a considerably lower maximum sentence than the one of which the first jury found you guilty. The maximum sentence for a sexual assault of a child under 16 is 10 years’ imprisonment with a standard sentence of 4 years; the penetration charge carried a maximum sentence of 25 years with a standard sentence of 10 years.
69While the evidence did not establish actual penetration of Skye’s vagina, it was still a serious example of a sexual assault in my view. You touched Skye’s vagina under her underwear after making her masturbate your penis. Skye was only 11 years of age; you were 39. You were in a relationship with Skye’s mother.
70This was at least a mid-range example of a sexual assault of a child under the age of 16 taking into account only the objective features of the offending.
71You are to be sentenced after a trial having shown no remorse for your offending. You were of course entitled to run a trial and challenge the evidence. However, by doing so you ‘lost any entitlement [you] may otherwise have had to the very significant mitigatory benefit [you] might have received had [you] taken a different course, and pleaded guilty to the offences with which [you] were charged’.[31]
[31] Lombard (n 25) 10 [29].
72A sentence of 4 years’ imprisonment, being the standard sentence, is called for in relation to charge 6.
73I have otherwise imposed the same sentences as were imposed by Judge Smallwood.
74Each sentence is lower than the standard sentence taking into account its objective gravity and the other matters I have discussed earlier.
75Your counsel sought to convince me that I should impose lower sentences than Judge Smallwood did on charges 9 and 10 which concerned two attempted sexual penetrations of Skye. The argument was that his Honour had erroneously proceeded on the basis that, although the offence of attempt was not a standard sentence offence, if it was, the standard sentence would be ‘in the vicinity of about eight [years]’.[32]
[32] Briggs (no. 1) (n 19) 1 [2].
76I can see nothing in the sentencing reasons of his Honour which suggests that the sentences of 6 years’ imprisonment imposed in respect of charges 9 and 10 were any higher than they otherwise would have been if his Honour had not stated this in his sentencing reasons.
77More importantly, I consider that sentences of 6 years’ imprisonment on each of those charges is entirely appropriate having regard to all relevant considerations.
Orders
78The Orders of the Court are, on:
(a) Charge 1, 18 months;
(b) Charge 2, eight years;
(c) Charge 3, 18 months;
(d) Charge 4, 18 months;
(e) Charge 6, four years;
(f) Charge 7, 18 months;
(g) Charge 8, 18 months;
(h) Charge 9, six years;
(i) Charge 10, six years; and
(j) Charge 11, eight years.
79As his Honour did, I will designate the charge 2 sentence as the head sentence.
80Eighteen months of the sentence on charge 6 and three years of the sentence on charge 11 are to be served cumulatively upon each other and on the head sentence.
81The sentences on charges 1, 3, 4, 7, 8, 9 and 10 are to be served concurrently with each other and with the head sentence.
82The total effective sentence is therefore 12 years and 6 months.
83You will be required to serve eight years and 9 months before you will be eligible for parole.
84Pursuant to s 18 of the Sentencing Act, 488 days is to be reckoned as time served.
85Because you have been found guilty of two or more Class 1 offences, you are subject to the sex offender reporting obligations for the remainder of your life.[33]
[33] Sex Offences Registry Act 2004 (Vic).
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