Director of Public Prosecutions v Wrixon (a Pseudonym)
[2018] VCC 1973
•14 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CR-17-00910
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCUS WRIXON (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM | |
| WHERE HELD: | Latrobe Valley (Trial); Melbourne (Plea and Sentence) | |
| DATE OF HEARING: | 29 - 31 August; 3 - 10 September; 8 November 2018 | |
| DATE OF SENTENCE: | 14 November 2018 | |
| CASE MAY BE CITED AS: | DPP v Wrixon (a Pseudonym) | |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1973 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of not guilty – found guilty of two charges of indecent act with a child under 16 and seven charges of incest – two victims – daughters of the accused – gross breach of trust – persistent offending – serious sexual offender
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:DPP v G [2002] VSCA 6; DPP v Dalgliesh(a Pseudonym) [2016] VSCA 148
Sentence:Total effective sentence of 14 years and 3 months’ imprisonment with a non-parole period of 9 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Guesdon (Trial; Plea) Ms A. Harrold (Sentence) | Solicitor for Public Prosecutions |
| For the Accused | Mr R. Thyssen (Trial; Plea) Mr J. Lavery (Sentence) | Victoria Legal Aid |
HIS HONOUR:
1 Marcus Wrixon,[1] on 11 September 2018 following a trial, you were found guilty of nine charges of offending relating to your daughters Brooke and Lucinda.[2]
[1] ‘Marcus Wrixon’ is a pseudonym.
[2] ‘Brooke’ and ‘Lucinda’ are pseudonyms.
2 Brooke was born in 1983 and was the eldest of four children born to you and your ex-wife, Genevieve.[3] Lucinda was the youngest of your children, born in 1991. You were born in 1956.
[3] ‘Genevieve’ is a pseudonym.
3 In relation to Brooke, you were found guilty of one charge of indecent act with a child under the age of 16 (Charge 1 in the alternative) and one charge of incest (Charge 2). Brooke would have been between the ages of 11 and 12 at the time of your offending, and you between the ages of 38 and 40.
4 In relation to Lucinda, you were found guilty of one charge of indecent act with a child under the age of 16 (Charge 6), and six charges of incest (Charges 7, 9, 10, 11, 12, 13). The charge dates of your offending against Lucinda were between 18 August 2004 and 28 February 2005, when Lucinda would have been 12 or 13 years old, and you would have been 48 years old.
5 The maximum penalties are as follows: indecent act with a child under 16, a term of imprisonment of 10 years; incest, at the time of your offending against Brooke, a term of imprisonment of 20 years; and incest, at the time of your offending against Lucinda, a term of imprisonment of 25 years.
6 In brief compass, the circumstances of your offending are as follows.
7 In approximately 1993 you and Genevieve separated, although your relationship remained one of friendship and indeed of occasional intimacy. You lived in homes a short walking distance from each other. Brooke and your two sons, Fred and Timothy,[4] lived with you at your home. Lucinda lived with Genevieve, and on occasion she would be looked after by you when Genevieve worked.
[4] ‘Fred’ and ‘Timothy’ are pseudonyms.
8 The offending against Brooke commenced shortly after she had started menstruating. You had brought home a book on puberty and under the guise of teaching Brooke about her own body, touched all the different parts of her genitalia; this was Charge 1, indecent act with a child under 16. This was not an isolated act. Brooke gave evidence that this touching continued over a period of many months. You are, of course, not to be sentenced for uncharged offending.
9 Around the middle of 1996, Brooke came into your bedroom saying that she was too unwell to go to school. Your response was to make Brooke straddle your prone body whilst you were lying on your bed. You then inserted your penis into Brooke's vagina causing her hymen to break, and on this occasion you ejaculated inside of her; this was the basis of Charge 2, incest. The two offences spanned approximately one year in time.
10 The offending against Lucinda commenced again within weeks of Lucinda’s first cycle of menstruation. From the age of 12, Lucinda spent more and more nights sleeping in your home whilst her mother Genevieve worked. Lucinda was staying at your home and you came into her bedroom whilst she was asleep and touched her vagina, which was Charge 6, indecent act with a child under 16.
11 A few days after this first incident, your daughter again woke to you touching her vagina. On this occasion after touching the outside of her vagina, you inserted your fingers into her vagina. This digital penetration constitutes Charge 7, the first charge of incest against Lucinda.
12 On a third occasion you again came into Lucinda's room at night and this time inserted your penis into her vagina, which was Charge 9, incest.
13 Charges 10, 11, 12 and 13, all charges of incest, reflect separate occasions upon which you came into Lucinda's room while she was spending the night in your home, and inserted your penis into her vagina. At times Lucinda would try to hide behind the bed, against the wall or under the mattress. All of this was to no avail. You would find her and then use her for your own sexual gratification. Your offending against Lucinda was committed over a period of approximately nine months.
14 Brooke had complained to her mother about your offending against her. It seems she was met by indifference. She left home at the earliest possible opportunity when she was approximately 16 years of age. Brooke was acutely aware that she had left behind a sister who could be preyed upon by you. In late 2006, the two sisters had a telephone conversation wherein Lucinda confirmed to Brooke that she had been sexually abused by you. Following this conversation, arrangements were made for Lucinda to go and live with Brooke and her family interstate. At this point Lucinda was 14 years of age.
15 Both your daughters provided victim impact statements on the plea, Exhibit 1, Brooke, and Exhibit 2, Lucinda.
16 Brooke writes in telling and considered prose, that, "It has taken many, many years for me to reconcile the dichotomy of events and to make peace with the past. I live with a lifelong trauma-induced chronic illness that requires daily management else it severely incapacitates my physical and mental capacities." Brooke speaks of her shame, of her embarrassment and the sense that she must walk down the street, "knowing that this childhood of mine was a poorly held secret in our community." She also speaks of the present, "I will walk down the street and not know if I will ever be seen by a juror. I have to live with the knowledge that these details have been forcibly unpacked from my mind several times and to utter strangers I have never seen and will never know." She concludes, "There is no outcome for this trial that could ever erase this lingering, festering poisonous shadow my childhood rapes and abuses have left. I am left a mother who struggles to emotionally connect. I am a wife who cannot give my husband a normal marriage – a wife left mortified when my panic attacks have caused him harm. I am an incomplete person."
17 Lucinda speaks of her sense of confusion and of how you were her beloved idol of a father but that she wanted you to stop raping her. This confusion has left her with many years of inward self-blame and confusion. She struggles to understand the relationship with her father and with her mother and of her fear that once she had left home you or her mother might come and seek to bring her back. This produced a further uncertainty and a scarring of her childhood. She states that "I made a choice and that was to report it", (a reference to your abuse of her), "that is the only way I knew how to break the silence/secret to ensure it never happened again." She then set out what she had lost; her relationship with her parents, her foundational education, her virginity, and that for the future she will never be able to allow her children to have anything to do with you, never be able to have you, her parents, at a wedding or at her children's birth, or any of the momentous occasions she may experience in the future.
18 Whilst of course such statements must not be permitted to overwhelm the sentencing process, there can be no doubt as to the lasting, indeed lifelong impact of your offending on your daughters.
19 I turn to your personal circumstances.
20 You were born in 1956 and are now aged 62. I regard you as a man with no prior convictions. You were born in New Zealand, the older of two children with one younger sister. Your father was in the army, your mother worked in art. You were educated to Year 11 in New Zealand and then completed a trade apprenticeship, working for a year doing maintenance and then on construction sites.
21 You emigrated to Australia with your then-wife Genevieve in 1985. Following your arrival here, you worked in construction in the Australian Capital Territory before settling in regional Victoria. You have worked consistently to provide at least some material comfort for your family. In 1994 you were in effect a single father being responsible for the eldest three of your children, and, as stated earlier, your ex-wife Genevieve lived nearby with Lucinda. Whilst living as a single parent, you obtained a teaching qualification in 1998 and worked in education from 1998 to 2010. You worked in security from 2010 up until your conviction.
22 In the main you have been healthy throughout your life, however since your remand you have been diagnosed with Type 1 diabetes and you now require insulin injections three times per day. These injections cannot be self-administered but must be provided by medical attendants at the prison.
23 Tendered on the plea as Exhibit 4 was a report from Ms Carla Lechner, clinical psychologist dated 10 October 2018. You reported to Ms Lechner that the family home in which you were raised was "loveless, isolated” and that “my parents were distant with each other. I felt I grew up in a vacuum." You impressed as being of average intelligence and capable of reflecting upon the impact that your behaviour has on both yourself and others. You also appeared quite rigid in your thinking style, finding it hard to engage in imaginative thinking or taking alternative perspectives. This is particularly evident in relation to your victims. You stated that you feel most angry about cruelty to animals.
24 You continue to deny the offending, describing it as absolute rubbish. You identified there had always been tensions in the family. You spoke to Ms Lechner of a high level of distrust and animosity in your own family unit but you could not explain why this was the case. You stated that family life was always fractured, adding that you would walk away from conflict. Ms Lechner said, "He described himself as a negligent father on account of his inability to emotionally connect with his children who all seemed to have moved away from home at an early age."
25 After administering recognised actuarial tools for risk assessment, Ms Lechner concluded that in her view, "Mr Wrixon is at low moderate risk of future sexual offending. His offending can be described as consistent with the regressed child molester. It is commonly accepted that incestuous fathers are typically regressed child molesters who molest only their own children, do not collect child pornography and are best dealt with in non criminal treatment programs."
26 In light of your continued denial of your offending, Ms Lechner could not advise as to treatment consideration, nor could I make an assessment of your prospects of rehabilitation.
27 I now turn to the submissions of counsel.
28 Ms Guesdon for the prosecution submitted correctly that general and specific deterrence and denunciation are the primary sentencing considerations. She reminded me that you would fall to be sentenced as a serious sexual offender under the provisions of the Sentencing Act 1991 whereby protection of the community is the principal purpose for which a sentence may be imposed.
29 Ms Guesdon did not seek a longer than commensurate sentence in your case having regard to your assessed risk of reoffending, the apparent contextual nature of this offending and your age and social disconnectedness.
30 I find it unlikely that you will be again in a position where you could prey upon children within your social or familial orbit.
31 Ms Guesdon submitted that your offending against your daughters represented serious examples of serious offending.
32 She submitted there should be significant cumulation subject, of course, to a principle of totality.
33 Mr Thyssen in short and sensible submissions on your behalf accepted that the only sentencing disposition available was one of a significant and substantial term of imprisonment.
34 He accepted there was no room for mitigation for such a sentence on the basis of your expressed remorse, in light of your plea of not guilty and your continued denial of the offending.
35 He pointed to your good work record, that you had in your own way been a provider in somewhat difficult circumstances.
36 He accepted your apparent lack of emotional attachment.
37 He submitted that your diagnosis of Type 1 diabetes had the potential to make your incarceration more difficult in the future. I accept in this regard that you will have to be reliant upon the punctual provision of your insulin medication by others and I give such weight as I can to this factor.
38 Mr Thyssen submitted that any sentence should not be crushing and should be so structured as to permit a significant portion to be served by way of supervision within the community.
39 Mr Wrixon, you have been found guilty of most serious offending, as is made clear by the maximum penalties imposed by Parliament.
40 In the case of the Director of Public Prosecutions v G [2002] VSCA 6, President Winneke observed that, “This court has in recent years had cause to remark upon 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 effect of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care in the community and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge. Parents who fail to exercise the restraint which the community expects of them and to give in to their own sexual gratification must expect to be severely and appropriately punished.”
41 In Director of Public Prosecutions v Dalgliesh(a Pseudonym) [2016] VSCA 148, the Court of Appeal observed, “Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long term harm done to the victim now better understood must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved."
42 At the time of your offending, Mr Wrixon, your daughters were in your care. You offended against your two daughters in the home which they shared with you, their natural father. There they should have felt safe, they had a right to look to their father for guidance, parental care, love and security. Instead their home became the place where you preyed upon them for the purpose of your own sexual gratification. Your victims were your own immediate bloodline. It is almost trite to describe such offending as a gross breach of trust. Your acts constitute a fundamental abuse of parental authority, and further a fundamental betrayal of the relationship between father and daughter. It represents a fundamental betrayal of all recognised values of family, decency, and common humanity.
43 Your actions deprived your daughters of a childhood which they craved and to which they were entitled, and your actions have left them emotionally scarred. They carry the weight of their past into all of their present and most likely into their future.
44 Your offending against them was not isolated but persistent. The offending in respect of each of your daughters was over a period of months.
45 The incest charges consist both in digital penetration (Charge 7) and in penile vaginal penetration (Charges 2, 9, 10, 11, 12 and 13). Digital penetration is itself not to be viewed as a lesser form of the crime of incest; it is merely absent some of those features which may raise the objective gravity of the offending. The offending in Charge 2, 9, 10, 11, 12 and 13 consisted in unprotected penile vaginal penetration and in one case, ejaculation (Charge 2); these are features which do raise the objective gravity of your offending in those charges.
46 The offences of incest were not momentary, although I can make no finding as to how protracted in time they were. Your offending progressed from one daughter to the next. Your daughter Lucinda would hide from you; it must therefore have been obvious to you that she was not a willing participant. However, nothing that she could do could save her.
47 Mr Wrixon, in sentencing you, I must have regard to a range of different factors. I must protect the community from you. I must give effect to principles of both general and specific deterrence, that is, I must deter others from behaving like you did, and I must deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct and I take into account the effect your crimes have had upon your victims. I must have regard to both current sentencing practices and the maximum penalties imposed by Parliament for the kind of offence that you have committed. I should also promote, if possible, your rehabilitation. I have to try and balance your personal circumstances with the circumstances of your offending.
48 Incest has been rightly described as an appalling crime. Protection of the community, general deterrence, specific deterrence and denunciation are clearly the primary sentencing considerations in this case. I give such weight as I can to the mitigatory factors to which I have been referred. I have regard to your age, and to your recently diagnosed diabetes and the challenges that may present for you in a custodial sentence.
49 However, as has been accepted by your counsel, the only appropriate sentence in your case is a substantial term of imprisonment.
50 If you would please stand, Mr Wrixon.
51 On Charge 1, indecent act with a child under the age of 16, you are sentenced to a term of imprisonment of 21 months.
52 On Charge 2, incest, you are sentenced to a term of imprisonment of seven years.
53 On Charge 6, indecent act with a child under the age of 16, you are sentenced to a term of imprisonment of 18 months.
54 On Charge 7, incest, you are sentenced to a term of imprisonment of five years and six months.
55 On Charge 9, incest, you are sentenced to a term of imprisonment of seven years.
56 On Charge 10, incest, you are sentenced to a term of imprisonment of seven years.
57 On Charge 11, incest, you are sentenced to a term of imprisonment of seven years.
58 On Charge 12, incest, you are sentenced to a term of imprisonment of seven years.
59 On Charge 13, incest, you are sentenced to a term of imprisonment of seven years.
60 I direct that 6 months of the sentence on Charge 1, 6 months of the sentence on Charge 6, 18 months of the sentence on Charge 7, 21 months of the sentence on Charge 9, 9 months of the sentence on Charge 10, 9 months of the sentence on Charge 11, 9 months of the sentence on Charge 12 and 9 months of the sentence on Charge 13 run cumulatively to each other and cumulative to the sentence on Charge 2.
61 This makes a total effective sentence of 14 years and 3 months’ imprisonment.
62 I fix a non-parole period of nine years and nine months.
63 Pursuant to s.6F of the Sentencing Act 1991, on Charges 6, 7, 9, 10, 11, 12 and 13, you are sentenced as a serious sexual offender and I direct that this be entered into the records of the Court.
64 I declare pursuant to s.18 of the Sentencing Act 1991, you have served 64 days of the sentence I have passed today.
65 Under the provisions of the Sex Offenders Registration Act 2004, you are a registrable offender for the rest of your life. A document will be brought to you setting out your obligations and you will need to sign to acknowledge that you’ve received it. It will be explained to you upon your release what those responsibilities mean.
66 I'm going to make a s.464ZF order, that's not opposed, Mr Lavery?
67 MR LAVERY: No, Your Honour.
68 HIS HONOUR: Mr Wrixon, I am making an order to enable the authorities to take a DNA sample from you. That is done by the taking of a buccal swab, so basically putting a Q-tip in your mouth, getting a sample of saliva and that goes on a database. When an officer comes to take that sample, should you refuse, the officer is entitled to use such force as is reasonably necessary so as to take the sample from you.
69 Now, custody management issues, I will note the management of his diabetes.
70 MR LAVERY: Yes, Your Honour.
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