Director of Public Prosecutions v Seymour (a pseudonym)
[2019] VCC 809
•4 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOYD SEYMOUR (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 June 2019 | |
CASE MAY BE CITED AS: | DPP v Seymour (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 809 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. D'Arcy | |
| For the Accused | Mr A. Halphen |
HER HONOUR:
1 Boyd Seymour[1], a jury has found you guilty of two charges of indecent act with a child under 16 and two charges of sexual touching of a child under 16. The facts underlying this offending are as follows.
[1] Boyd Seymour is a pseudonym.
2 The victim in this case was your daughter, Phoebe[2]. The offending occurred in the then family home.
[2] Phoebe is a pseudonym.
3 Phoebe gave evidence that between 27 April and 31 December 2016, she was relaxing in your and your wife’s bed at which time she was 10. She said whilst she was in the bed you lay on top her and rubbed your penis against her vagina through the clothes worn by each of you. These facts underlie Charge 1.
4 The second incident is said to have occurred between 1 November 2016 and 7 December 2017 when your wife asked Phoebe to give you a massage after she told you she was too busy to do so. At this stage Phoebe was aged 10 or 11. Phoebe's evidence was that she began a normal massage with you whilst you were lying on your stomach, that you then turned over, lay on your back so that Phoebe was straddling you and then made her move her vagina against your penis through underwear. These actions underlie Charge 2 on the indictment.
5 You were acquitted in relation to a charge of sexual touching said to have occurred in the family car. Charge 4 relates to an incident said to have happened on 7 December 2017 when Phoebe was 11. She was in the room that you shared with your wife. You touched her and she tried to leave the room but you blocked her and then you got on top of her whilst she was on the bed and put your penis against her vagina, rubbing your penis against her vagina through clothing.
6
Charge 5, a charge of sexual touching, occurred between 1 July and
31 August 2017 when Phoebe was 11. You took her to the library to get a book which was not available and the two of you then played a version of basketball in the car where if the person who was meant to catch the ball did not that person would then be tickled by the other. It was Phoebe's evidence that you threw the ball hard at her, she missed it and that the two of you played the game about five times. Each time she lost she had to sit on your lap and you tickled her. She said that whilst doing this you put your hand inside her jeans and underwear and tickled near her vagina.
7 Ultimately Phoebe told her mother what was occurring. There were some discussions and writings between herself and her mother which was led in evidence in court. The matter was eventually taken to police.
8 I now turn to your personal circumstances.
9 You are 40 years of age. Your parents married in Lebanon and migrated here. You were born in Prahran. When you were two your parents separated and eventually your mother moved you and your older sister to the northern suburbs of Melbourne. Your older sister is now 45 and you have a younger half-sister, aged 25 year old, who works in childcare. Your older sister is a retired teacher. Your mother worked as a kindergarten teacher.
10 Your father moved to Sydney. He has been unemployed since retiring due to a workplace injury. Your mother re-partnered for a while but that man never lived with you. You told Pamela Matthews, whose report dated 5 May 2019 was tendered on the plea, that you suffered no exposure to family violence, sexual abuse or substance abuse.
11 You were educated in Prahran to Year 7, at which stage your mother moved your family to the northern suburbs. You completed Year 11 at a local high school. You reported no problems at school. You undertook a TAFE course in panel beating and then for a few years worked at Australia Post in the parcel delivery section.
12 In 2007 you moved to Saudi Arabia to take up a scholarship which was offered by the Saudi Arabian government in order to study Arabic and Sharia law. You are a Sunni Muslim and became quite religious. You studied there for eight years, returning in 2015. Your wife, who was pregnant with your second daughter followed you a year later, bringing with her your eldest daughter. Your daughter Phoebe was born in Saudi Arabia.
13 On your return in 2015 you worked as a local community counsellor, counselling youth with drug and alcohol problems and assisting people who had marital difficulties.
14 You told Ms Matthews that you had had a girlfriend between the ages of 16 and 19 but then became religious and ceased that relationship. You met your wife in Lebanon and the two of you married 15 years ago. Your eldest daughter, who is now aged 14 to 15, is profoundly autistic with very limited speech capacity. Phoebe is now 13 and attends a special school as she also has some intellectual difficulties. Both children were home schooled whilst in Saudi Arabia.
15 After you were charged with these offences your wife and two children moved to live with her family in Sydney. You then lived with your mother who offered you strong support and continues to support you. You receive visits in gaol from your mother, your aunts and your sisters.
16 You are in good physical health. You have never used alcohol or drugs. You reported to Ms Matthews that you are grieving for the loss of contact with your children. You told her, however, that you are resilient and keeping busy. You have undertaken every course that you possibly can in the limited scenario of remand custody and you exercise as much as you can.
17 You maintain your innocence of these charges. You were assessed by Ms Matthews as being a low risk of reoffending using both the Matrix 200S, an actuarial judgement, and the RSVP. She found you not to have paedophilic tendencies. It was difficult for Ms Matthews in light of your position which is that you are not guilty of this offending but she made her assessment upon 23. I think it was other protective factors which exist in your life.
18 In terms of what was revealed in the police documentation it was Ms Matthews' view that the offending was one of opportunistic familial sexual abuse.
19 Your counsel submitted that the offending lacked aggravating features such as violence or coercion to Phoebe not to tell anyone. The offending was not protracted, did not involve skin on skin contact or exposure of genitalia. It was, your counsel submitted, offending involving discrete incidents over a 12 month period, lacking sophistication of any kind including even closing a door to ensure secrecy. Mr Halphen submitted that your offending was opportunistic. However, he did concede that the absence of aggravation did not, in itself, amount to mitigation. He said I should find that your offending fell at the lower end of the scale.
20 Turning back to Ms Matthews. She stated in her report:
'The matters before the court are described as opportunistic and familial. They are not clearly indicative of paraphilia or paedophilia. There are no indications he is a general risk to the community although given the guilty verdict as a preventative measure his access to his children should be limited to supervised only. I identify potential risks factors have been the opportunity, marital problems and length of time over which the offending is described as occurring.'
21 Ms Matthews further opined that low level sex offender treatment intervention would be appropriate in your case. She noted that you told her you have made an application whilst at the Hopkins Centre to engage in that offered treatment.
22 You told Ms Matthews that life in Saudi Arabia was oppressive and difficult for your wife and that you believed that she may have developed depression in that time as well as suffering an ongoing neck condition as a result of a car accident. You said that you were very busy on your return to Australia, were not home much and that relations between you and your wife became strained.
23 You have a prior conviction for falsifying a travel card which I do not regard as relevant in any way to the sentencing exercise before me. I accept that you have much support in the community as evidenced by a large number of references from immediate and extended family and friends. I accept that you appear to be an intelligent self-motivated man as evidenced clearly by the number of courses you have already undertaken, as I have said, in the limited environment of remand in a short period of time.
24 It is difficult for this court to assess your prospects of rehabilitation despite the psychological testing. Again, this is because you maintain your innocence and there is little by way of explanation for your offending beyond the opinion of Ms Matthews based on her own testing and the police brief.
25 The explanation she proffers may or may not be correct but without independent information as to how this offending came about there is little I can deduce in this regard. However, I do accept your prospects of rehabilitation insofar as employment and family support are concerned are good and I am satisfied that you do have a positive outlook and will reshape a life for yourself once you leave gaol.
26 I note again that you were not found to be suffering any psychological or substance abuse issues.
27 Ultimately, I must sentence you with primary regard to the principles of condemnation, just punishment and general deterrence that apply always in cases of this kind.
28 Sexual abuse by a father of his child is a horrendous and very serious breach of trust. As is clear from the victim impact statements, your actions have had far reaching effects on both Phoebe and her mother. They have been uprooted from their home and both of them, particularly Phoebe's mother, feel deeply betrayed.
29 Phoebe and her mother were both forced to endure the trauma of giving cross‑examination as well as giving evidence. It is clear from her victim impact statement Phoebe found this a very difficult experience. Sadly, she wrote, 'I had to move to another state to be safe'.
30 She wrote of missing her old home, her friends and wonders 'What real dads are like and how they treat kids? What do real kids actually do?'.
31 Your wife’s victim impact statement was redolent with grief and pain. She described the move to Sydney as a nightmare and she wrote:
'The worst feeling in the world is to suffer the pain of betrayal. It's shocking to know the stab came from someone very close to you, from a family member'.
32 She described her emotional suffering as huge, writing:
'I suffer from depression and anxiety, loneliness, grief and fear. I entered a state of shock, loss of focus and unstable sleep'.
33 Continuing:
'I can no longer live an ordinary life. The matter made me not to trust the people around me. The matter is very shameful. It affected me socially and physically'.
34 It was not submitted that I should deal with you in any way other than by a term of imprisonment. In sentencing you I do take into account the continuing supports you have in the community, your history of committed work and employment, your evident intelligence and the fact that you have a largely unblemished criminal history. There is, however, no remorse demonstrated by you for your offending.
35 I therefore sentence you as follows, sir. Can you stand up please?
36 On Charges 1, 2 and 3, I sentence you to 16 months imprisonment on each charge. On Charge 5, I sentence you to four months imprisonment. Eight months of the sentence imposed on Charges 2 and 3 will be served cumulatively to the sentence on Charge 1 and two months of the sentence imposed on Charge 5 will be served cumulatively to the sentence imposed on Charge 1 giving a total effective sentence of three years. I order that you serve 18 months imprisonment before becoming eligible for parole.
37 Thank you. Have a seat, Mr Seymour. I declare that 89 days of this sentence has been served by way of pre-sentence detention. Thank you.
38 MR HALPHEN: If Your Honour pleases.
39 HER HONOUR: Sorry, I think my maths are wrong. I beg your pardon. So it will be nine months on Charges 2 and 3 will be cumulative.
40 MR D'ARCY: And the SORA, the registration?
41 HER HONOUR: I beg your pardon. You will be placed on the Sex Offenders Registration Register for life. What do we do about getting the papers? I've made arrangements with Mr Randles - - -
42 MR HALPHEN: Yes.
43 HER HONOUR: - - - for that to occur because I very much understand the reason why Mr Seymour wanted to be dealt with at the gaol and not brought in.
44 MR D'ARCY: And Your Honour will make a declaration as to serious sexual offender - - -
45 HER HONOUR: Yes. In relation to Charges 3 and 5 I declare you are a serious sexual offender. Thank you.
46 MR D'ARCY: And the forensic sample?
47 HER HONOUR: Yes, I will grant that. What will happen, Mr Seymour, is that police will visit gaol and they will take a swab from your mouth which is obtaining a forensic sample. I need to tell you that if you refuse to allow them to do this police may use reasonable force in order to obtain that sample. Thank you.
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MR HALPHEN: Sorry, Your Honour, 34?
HER HONOUR: So you've 16 plus nine is 25 plus nine is 34 plus two is 36.
MR HALPHEN: Yes, Your Honour. Thank you, Your Honour. I'm - - -
HER HONOUR: It's all right. We all did law because we can't do maths. So there you go. All right. Thank you very much.
MR HALPHEN: As Your Honour pleases.
HER HONOUR: Yes, thank you.
MR D'ARCY: May it please Your Honour.
HER HONOUR: Thank you.
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