Director of Public Prosecutions v Poindexter (a pseudonym)
[2025] VCC 176
•25 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XAVIER POINDEXTER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 4-7, 10, 11, and 14 February 2025 |
DATE OF SENTENCE: | 25 February 2025 |
CASE MAY BE CITED AS: | DPP v Poindexter (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2025] VCC 176 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Trial – Guilty verdict, sexual penetration of a child under 16 years, sexual assault of child under 16 years, childhood disadvantage, standard sentencing, serious sexual offender
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:
Sentence: Imprisonment, Total effective sentence of 12 years, Non-parole period 8 years, Sex Offenders Registration for life
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | Office of Public Prosecutions, Ms A. Lekamge |
For the Accused | Ms C. Akhtar | Mr A. Istfan, Criminal Defence Lawyers, (NSW) |
HIS HONOUR:
1Xavier Poindexter,[1] you have been convicted by a jury of five charges of sexual penetration of a child under 16 years and two charges of sexual assault of a child under the age of 16.
[1] A pseudonym.
2Your offending occurred from January to March 2021. At the time you were 27 years of age. You normally resided in New South Wales but would visit your maternal aunt, Candice Poindexter[2] and her family each Christmas period.
[2] A pseudonym.
3Your victim, Chloe Poindexter,[3] is your second cousin and the granddaughter of Candice Poindexter. Chloe lived with her grandmother in a house in Melbourne
[3] A pseudonym.
4You came to your aunt's home on 21 December 2020 and because of the COVID-19 pandemic movement restrictions you stayed with her until after a family wedding in March 2021.
5Chloe was born in February 2006 and was 14 when you first offended. She turned 15 midway through your offending. Chloe's younger sister, Annalise[4] also lived with Candice and shared a bedroom with Chloe during your stay and you slept in Annalise's room.
[4] A pseudonym.
6Chloe and you were observed to be 'close' during your stay. You discussed personal and sexual issues with Chloe and hinted at wanting a sexual relationship with her when she turned 16. You were well aware of Chloe's age.
7The evidence discloses that you and Chloe engaged in regular sexual activity over the three-month period. You are to be sentenced for seven discrete offences that occurred during that period on three distinct incidents or occasions.
8Charges 1 to 4 all occurred on the evening of 17 January 2021. There is a theatre room at the Melbourne property. At about 11 pm to midnight you and Chloe were seated on beanbags watching a movie in that room. No one else was present. You told her that you were 'hard' and asked her to sit on your lap. She did so and said she was grinding on your lap. You then asked if you could finger her and she agreed. You moved her pyjama shorts and penetrated her vagina with your fingers. This the basis of Charge 1.
9You desisted and got onto the couch. You asked Chloe for a blow job, pulling down your tracksuit pants revealing your penis. You penetrated her mouth with your penis moving her head up and down in a bobbing motion and this is the basis of Charge 2.
10You then asked if you could put your penis inside her and she agreed. You inserted your penis a short way into her vagina that caused Chloe considerable pain. You told her to relax and tried to penetrate deeper and that penile penetration is the basis of Charge 3.
11Whilst this was occurring you were pulling at her top and sucking on her breasts and that is the basis of Charge 4.
12Chloe was seated on top of you whilst you vaginally penetrated her. You told her to get off and ejaculated onto your stomach. Chloe got toilet paper for you to clean yourself and then she went to her bed.
13By February 2021 you were having regular sexual intercourse with Chloe secretly from her family. You told her that if she told people what you had been doing you would tell them that she was mentally unstable. At the time Chloe was having mental health issues and receiving counselling.
14The next incident Chloe described occurred in February 2021 when she turned 15. Chloe came home from school and you were the only person home. She told you she had a sore back and asked for a massage. You agreed. In Annalise's bedroom, the room you were sleeping in, you rubbed body cream onto her back. You moved your hands to the front and squeezed her breasts. That is the basis of Charge 5, sexual assault of a child.
15You then moved your hands to her buttocks and removed her pants. You started choking her in a sexual way, pulling her hair and rubbing your penis against her buttocks. You then penetrated her vagina with your penis from behind causing Chloe pain and to bleed. That is the basis of Charge 6.
16Chloe told you that it hurt too much. You told her to grab a pad and clean up the blood from the floor. Chloe went to her room and changed her clothes before her grandmother came home.
17The third incident occurred on 22 March 2021 after a family wedding in the Northern suburbs in Melbourne. Annalise, Candice, her partner, you and Chloe all stayed at an Airbnb nearby. The bride, Beatrice Draker [5], had stayed at the Airbnb on the 20th but not on the 21st. The bedroom she had slept in was vacant that night.
[5] A pseudonym.
18At about 5 am you were leaving to return to New South Wales. You walked Chloe into the vacant bedroom and pulled your pants down. She removed her pants and got onto the floor on all fours and you penetrated her vagina with your penis from behind. This is the basis of Charge 7. You had sex for about 15 minutes and then you left the unit and Chloe returned to bed.
19Chloe told a friend, Daniella Buckman, [6] that she had had sex with you about two days after 17 January 2021. In March 2021 she told another friend, Amelia Armstrong,[7] that you had taken advantage of her and manipulated her into doing sexual things with you. She told Amelia that you had had sex with her multiple times.
[6] A pseudonym.
[7] A pseudonym.
20You and Chloe maintained regular contact after you returned to New South Wales. You exchanged in excess of 1,500 text messages. In one text message you told her she was 'clingy' and she decided to speak up about why she was that way.
21On 2 September 2021 she told her Aunt Beatrice that you had raped her. Beatrice informed Candice, and Chloe and Candice went to the police that day.
22On 8 September Chloe made a pre-text telephone call to you. When Chloe raised your sexual offending, you denied knowledge of any such activity. However, you then sent her a link for a computer Google Meet that afternoon. During that Google Meet you explained that you had to deny sexual activity during the phone call because phone calls might be recorded. You said you needed plausible deniability and you had to pretend not to know what Chloe was talking about because it might be recorded. You later said she could not have contracted an STD or sexually transmitted disease from you as she had, 'Slept with someone in between. It was more likely your recent partner'. These conversations became a forensic problem for you subsequently.
23On 29 April 2022 Victoria Police interviewed you in New South Wales. You denied on multiple times that any sexual activity took place between you and Chloe. You claimed she was a very sexually active person at school, got into a lot of trouble and was doing drugs. You claimed not to recall the Google Meet conversation with Chloe. When asked specifically whether Chloe had oral sex with you, you again said, 'Nothing sexual has happened between us'.
24On 28 February 2023 Chloe gave evidence at a special hearing. Despite your statements to the police when interviewed your counsel cross-examined Chloe about your version of events for January 2021. Ms Akhtar asked,
‘[Xavier] says that after you watched a movie you went into [Annalise's] room while [Xavier] was sleeping. Is that what happened?' Answer: 'No.' 'And [Xavier] says you put your mouth on [Xavier's] penis whilst he was sleeping. Is that what happened?' Answer: 'No.' ‘[Xavier] says that he asked you to stop doing that. Is that what happened?' Answer: 'Absolutely not.' [Xavier] says that after he asked you to stop he stopped you with his hand. Is that what happened?' 'Absolutely not. No.' [Xavier] says that after he stopped you from putting your mouth on his penis he told you to go back to theatre room. Is that what happened?' Answer: 'No.'
25You gave evidence at the trial on 6 February this year. When asked whether you had told the police the truth in your record of interview you answered, 'Mostly'. You said something sexual did happen and at p84 of the transcript you were asked, 'Which part wasn't true?', referring to the record of interview. You said,
'Something sexual did happen. On the night, I think it was the 17th. It was that night when [Annalise] wasn't there we were watching a movie and [Candice] had gone to bed and my aunt had gone to bed. We'd finished the movie and [Chloe] had gone to bed. I'd gone to bed and then in the middle of the night felt something like a wet sensation. I thought I needed to pee, and I when I work up groggy, I saw that [Chloe] was performing oral sex on me. She said, "Don't worry. It's just me", and I asked her to stop and she didn't stop immediately. And I kind of pushed her mouth away and told her to go to the theatre so I could talk to her then. I then went to the bathroom, cleaned up and went to the theatre to talk to her. I spoke to her about consent and the fact that she was underage and we shouldn't be doing that.'
26You gave evidence that there was no other sexual activity with Chloe. You gave convoluted and contrived evidence about the Google Meet conversation with Chloe. You admitted that you lied to the police about that conversation but claimed to be protecting Chloe from her assault on you. You also said you wanted to protect your future political career.
27It is clear that you fabricated a story to try and explain the Google Meet conversation with Chloe. You were demonstrated to be a straight-faced liar.
28I make it clear to you that I am not punishing you for the lies you told the police and the lies you told the jury. You did what you told Chloe you would do. You played the mental health card. You also invented drug use conversations, raised other sexual behaviour and manufactured a ludicrous story to try and save your own skin. As the learned prosecutor said, 'You lied through your teeth'.
29You have demonstrated absolutely no remorse for your offending. There is a complete absence of what would have been some mitigation of your offending.
30Chloe and Candice Poindexter both filed victim impact statements, Exhibit C and D respectively. Chloe says that what took place when she was 14 significantly impacted her life. She feels betrayed and experiences anger, frustration and hurt. She suffers anxiety and depression, severe insomnia and nightmares. She has complex post-traumatic stress disorder and has had mental health hospitalisations. She left her home and her school and needed psychological help and medication. She struggles to trust her own family.
31Candice Poindexter outlined the declined in Chloe's mental health over the past four years. She has become increasingly withdrawn and depressed and is verbally abusive and self-harming. Candice describes Chloe as psychotic. Her behaviour has affected her sister, Annalise.
32It is clear that your crimes have had significant and profound consequences for Chloe and her family. I take the victim impact statements into account in sentencing you.
33Turning to your personal circumstances. You are now 31 years of age, being born in June 1993. You set out your personal history in Exhibit 1, your affidavit tendered at your plea. You grew up in Western Sydney. Your father left your home when you were three years old and your mother re-partnered with a violent alcoholic. Your mother's relationship ended when you were 12.
34At age 16 you were ejected from your home and you lived in refuges whilst still attending school. You lived with a friend's family for a short period before moving in with another friend between the ages 18 and 25. You lost contact with your mother and your younger brother.
35After completing school, you worked at Bunnings whilst studying electrical engineering, programming, and mechanical engineering. You completed two degrees with Western Sydney University, engineering with first class honours and engineering science between 2018 and 2023. You worked as an engineer between March 2023 and June 2024; however, travel was difficult because of your bail conditions so you went back to working at Bunnings. You hope to be able to work as an engineer once you are released from custody.
36The offences for which you have been convicted are serious criminal offences. Sexual penetration of a child under 16 has a maximum penalty of 15 years' imprisonment and sexual assault of a child a maximum penalty of 10 years' imprisonment.
37Each of these offences are standard sentence offences with parliament setting standard sentences of six years and four years respectively. A standard sentence is not a mandatory sentence. It is similar to the maximum penalty prescribed. A signpost to be taken into account with the other sentencing factors and considerations. It is a signpost that applies to mid-level examples of a plea of guilty to such an offence. Offences against children require general deterrence, just punishment and denunciation to be the principal sentencing considerations.
38You also fall to be sentenced as a serious sexual offender for Charges 2 to 7 if the court imposes a term of imprisonment for all charges. As that will be the case I direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender on Charges 2 to 7.
39As a serious sexual offender, the court must regard protection of the community from you as the main sentencing consideration. To achieve that purpose the court can impose a disproportionate sentence. The prosecution does not seek such a sentence and I do not intend to impose such a sentence, as I can adequately protect the community with the sentencing options otherwise available to the court.
40As a serious sexual offender there is also a presumption of cumulation of sentence for each relevant offence. Although I intend to order some cumulation I have had regard to principles of totality in arriving at the appropriate sentence in your case. Total cumulation would lead to a ridiculously excessive sentence.
41I take into account in sentencing you your lack of criminal history and previous good character. You fall to be sentenced as a 31-year-old man of otherwise good character. You are clearly an intelligent man and have a demonstrated capacity to apply yourself to study and employment. You have overcome a difficult childhood and I take your background into account in a general way in sentencing you.
42I assess your prospects for rehabilitation to be reasonable. Your work history, lack of criminal history and your qualifications give you the chance to become a valuable member of the community in the future.
43Your offending involved a significant breach of trust. You were welcomed into the Poindexter family and trusted by your aunt. You manipulated and coerced Chloe into sexual activity when you well knew she was too young to experience. There was a large age difference between you and you well knew how vulnerable Chloe was and her mental health issues. You exploited her for your own sexual gratification. You have absolutely no remorse for having done so. As I say, an absence of that mitigatory factor.
44Your counsel properly acknowledged that this court had no option but to impose significant terms of imprisonment for your offending. Again I make it clear that I am sentencing you for the individual offences for which you were convicted. I have been mindful of principles of cumulation and totality in arriving at the appropriate sentences. There is a need for substantial concurrency for offences that occurred in the one incident, however, there must be some cumulation for charges on each incident.
45Would you stand up please?
46On all seven charges you are convicted. On Charge 1, sexual penetration of a child under 16, you are sentenced to five years' imprisonment.
47On Charge 2, sexual penetration of a child under 16, you are sentenced to six years' imprisonment.
48On Charge 3, sexual penetration of a child under 16, you are sentenced to seven years' imprisonment.
49On Charge 4, sexual assault of a child under 16, you are sentenced to three years' imprisonment.
50On Charge 5, sexual assault of a child under 16, you are sentenced to three years' imprisonment.
51On Charge 6, sexual penetration of a child under 16, you are sentenced to seven years' imprisonment.
52On Charge 7, sexual penetration of a child under 16, you are sentenced to seven years' imprisonment.
53I order that one year of the sentence imposed on Charge 2 and two years of each sentence imposed on Charges 6 and 7 be served cumulatively on the sentence imposed on Charge 3 which I declare to be the base sentence. That is an effective term of imprisonment of 12 years and I order that you serve eight years of that sentence before being eligible for parole.
54Can someone tell me what the PSD is please?
55MS AKHTAR: Fourteen days not including today, Your Honour.
56HIS HONOUR: Fourteen?
57MS AKHTAR: Fourteen days.
58HIS HONOUR: All right. I declare that 14 days of the sentence I have just imposed has already been served by way of pre-sentence detention. That is not including today.
59Pursuant to the requirements of the Sex Offenders Registration Act you are to comply with the reporting obligations for life.
60Are there any other orders required?
61MS AKHTAR: No, Your Honour.
62HIS HONOUR: All right. Thank you.
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