Director of Public Prosecutions v Molyneux (a pseudonym)
[2018] VCC 2225
•21 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND MOLYNEUX (a pseudonym) & DAISY MOLYNEUX (a pseudonym) |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13-17, 20-22, 27-31 August, 3-6, 11 September, 16, 22 November 2018 | |
DATE OF SENTENCE: | 21 December 2018 | |
CASE MAY BE CITED AS: | DPP v Molyneux (a pseudonym) & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2225 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offence
Catchwords: Incest – Indecent Act
Legislation Cited:
Cases Cited:Khem [2008] VSCA 136 – Harlow [2018] VSCA 234 – R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – Burgess v R [2017] VSCA 59 – Thrussell (a pseudonym) [2017] VSCA 386 – Stalio (2012) 46 VR 426 – Dalgliesh No 1 [2016] VSCA 148 – Dalgliesh [2017] HCA 41 – HMcL v R (2000) 174 ALR 1 – DPP v Toomey [2006] VSCA 90
Sentence: TES: Raymond MOLYNEUX – 14 years 6 months with a minimum of 11 years. TES: Daisy MOLYNEUX – 8 years with a minimum of 5 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant | OPP |
| For Raymond Molyneux | Mr L. Richter | Stary Norton Halphen |
| For Daisy Molyneux | Mr N. Howard | Greg Thomas |
HER HONOUR:
1 At the outset, I remind those listening that publication of anything likely to identify the complainant is prohibited by statute[1]. In my published remarks, pseudonyms will be used.
[1] Section 4 Judicial Proceedings Reports Act
2 Raymond Molyneux[2], on 6 September 2018, a jury found you guilty of committing incest as a course of conduct (Charge 1); committing an indecent act as a course of conduct (Charges 2 and 3); and single charges of incest (Charges 4, 6 and 7) and of committing an indecent act (Charges 5 and 6).
[2] A pseudonym
3 Daisy Molyneux[3], on the same day, the jury found you guilty of committing incest as a course of conduct (Charge 1); and committing an indecent act as a course of conduct (Charges 2 and 3).
[3] A pseudonym
4 Incest is a crime with a maximum sentence of 25 years’ imprisonment. Indecent act is a crime with a maximum of 10 years’ imprisonment.
5 The victim of the offending is your natural daughter, Caitlin[4]. She is the only daughter of the two of you, but you Ms Molyneux have adult children from two other relationships, being another daughter and three sons.
[4] A pseudonym
6 Caitlin is now aged 17, having had her birthday on the day the plea began, which was unfortunate timing. You both offended against her over the period when she was aged 5 to12 years.
7 Under the guise of a game, you took Caitlin to your bedroom where you would all become naked and lie on the bed. You, Ms Molyneux would hold her hand, whisper supportive comments in her ear, or watch, while you, Mr Molyneux committed sexual acts on your daughter. You also engaged in sexual activity together, with her lying naked on the bed. This "game" happened so often that it became normal activity for Caitlin, and not knowing anything else, she began to look forward to the special attention. She said in her VARE once it began at age 3 or 4, it just "kind of happened". You would all go into your bedroom, she was made to feel comfortable and loved, and sometimes she was given lollies or promised things to keep her lying on the bed, "staring at the ceiling", as she put it. She loved you both dearly, and still does, and was especially close to you, Mr Molyneux, and your success in normalising this activity meant that she considered these years to be “good years full of family and love”, until she realised it was not right.
8 Charge 1 relates to you, Mr Molyneux committing incest on your daughter by penetrating her vagina with your tongue. Charge 2 relates to you, Mr Molyneux committing an indecent act by masturbating in your daughter’s presence. As she explained it as a 15 year old in her VARE, during the activity, which she did not at the time it occurred understand was sexual, sometimes you "gave her oral sex", which is the subject of Charge 1, and sometimes you masturbated, which is the subject of Charge 2. Sometimes you were doing both at once. It is a course of conduct that you engaged in for seven years.
9 Charges 1 and 2 relate to you, Ms Molyneux assisting or encouraging your husband in the particular act by holding Caitlin’s hand and whispering supportively. It is a course of conduct that you engaged in for seven years. While you were not the principal offender in these offences, I am satisfied to the requisite standard from Caitlin’s evidence in the VARE that the activity could not have occurred so often or gone on for so many years, had Caitlin not been comforted by your presence, words and actions. This means that your complicity is at a high level.
10 Charge 3 relates to the two of you engaging in sexual intercourse together in Caitlin’s presence. You are both principal actors in this offence. Again, it is a course of conduct that you engaged in for seven years.
11 Caitlin said that sometimes you, Mr Molyneux would also be "giving her oral sex" at the same time as you and her mother engaged in sexual intercourse. This forms part of the course of conduct for Charge 1 for you alone.
12
Charges 4 to 7 relate to you, Mr Molyneux on an occasion when you were alone with Caitlin in your home. You committed incest by performing oral sex on your daughter (Charge 4), and committed an indecent act by masturbating in her presence (Charge 5) which was part of the "usual" activity. Caitlin remembered this particular occasion however, because she says it was the time
“her father took her virginity”. From where she was lying in her usual position on the bed, you pulled her towards the edge of the bed, and put your penis into her vagina (Charge 6). You told her it was going to hurt but you were there to protect her. You inserted your penis a little bit and when she called out in pain, you pulled your penis out a bit and then re-inserted it. You kept trying to insert your penis further and further as Caitlin got more and more worked up until you finally stopped when she asked you to, and she was just a "puddle of tears" on the bed.
13 The sexual activity between you was so normalised, that Caitlin actually felt she had disappointed you in this act, that she had done something wrong and had not made you happy. She promised you she would not tell her mother.
14 After you stopped penetrating her with your penis, you rubbed your penis around her groin. You also committed another act of incest by rubbing her clitoral area with your fingers (Charge 7). She thought you did that to make her feel better. Caitlin was aged 7 to 8 years on this occasion of oral, penile and digital penetration.
15 Caitlin said after that time, which was the only occasion you penetrated her with your penis, the sexual activity went back to "normal" but happened less often, down from about once a week to once a month. I am satisfied to the requisite standard from a reading of her VARE[5] that "normal" activity meant that both of you were engaged, as described for Charges 1, 2 and 3. I do not accept that you, Ms Molyneux were no longer involved from about 2008 to 2009.
[5] See for example, pp139, 141
16 On the last occasion anything happened, Caitlin was aged between 8 to 12 years. Ms Molyneux was not home and you, Mr Molyneux sat Caitlin on your lap on the couch and began putting your hands between her thighs, as she described it, trying to fiddle with her and put your hands where you should not (Charge 8). Caitlin said she fought against it, as she was beginning to realise it was not right and then she went upstairs, upset with you. She said you followed her and asked what was wrong, but did not pursue it. As I said, this was the last time any sexual event happened.
17 These are very serious examples of very serious offences. I make that assessment having regard to the following features:
· Caitlin was very young when the charged offending started (age 5) and even younger (3 or 4) when introduced to the "game" which led on to the offending;
· The course of conduct offending involved a multitude of occasions because it went on for 7 years, was on a weekly basis for about the first two to three years, and reduced in frequency in the last four to five years to once a month;
· This period of time was an extraordinarily large proportion of Caitlin’s young life to age 12;
· The breach of trust was egregious, involving both of you, her natural parents, acting together for the bulk of the offending; and
· Both of you told her to keep it secret and engaged in making her feel comfortable and unlikely to protest, including with gifts, such that you were able to continue the offending for such a long period.
18 The additional features affecting the gravity of Charge 6 for you, Mr Molyneux are that penile penetration of a 7 to 8 year old girl is a heinous offence, made even worse by her being your daughter; unsurprisingly, you caused her pain and, disgustingly, you persisted for some time until she was highly upset. Further, you did not use a condom, which given her young age did not expose her to the risk of pregnancy, but did still expose her to the potential risk of infection[6].
[6]Khem [2008] VSCA 136
19 The prosecutor submitted that it was relevant to an assessment of the gravity of the offending that the sexual activity was introduced as a game when she was 3 or 4, and the sexual activity was thereby normalised, which he submitted minimised the risk that Caitlin would recognise that what was happening was not right and tell someone. On the other hand, counsel for both of you submitted that the pretence of a game, and the use of secrecy, was preferable to the application of force or threats or coercion, and the offending was to be considered less serious because there was a lack of features such as use of sex toys, video recording, violence beyond the acts of penetration et cetera.
20 As was said in the case of Harlow[7], that there were not such features
“is not of great moment. The mere ability to point to the absence of different aggravating circumstances that might have been present in another case says little about the seriousness of the specific offences committed by [these accused] – particularly when that offending was itself committed in the different circumstances of serious aggravation to which [I] have already referred.”
[7] [2018] VSCA 234
21 I therefore accept the prosecution’s submission about the normalisation of the sexual activity.
22 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[8], and can include future harm[9].
[8]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[9]Adamson v R [2015] VSCA 194, [56]
23 I received a statement[10] which Caitlin read out, which told me of the impact on her of this serious offending. She left the family home where this serious abuse had been perpetrated on the day that she first told of it and has never been back. She now lives with one of her half-brothers, and is supported by another half-brother, both of whom attended court with her on the day of the plea. However, she is forever separated from her parents who abused her, and as she still loves them, she mourns the loss of their relationship deeply. As her other two half siblings are supporting you, her parents, she is also mourning the loss of those relationships. She feels conflicted; she says she will forgive, but never forget, and has the ongoing question of why, why could she not be simply loved as a daughter, a daughter who simply wished to make her parents proud, a daughter “who could feel safe with her parents who would love her in the sincerest, innocent and true way”.
[10] Exhibit B
24 I was told by the prosecutor that Caitlin has been receiving counselling and that is important. While she finished her statement on a positive note - that she is positive that she will eventually be able to succeed, prosper, blossom and heal - it is vital that she continues to access the support that she will need to reach these goals. It is clear to me that Caitlin is a bright, intelligent young woman who is showing her resilience. That does not mean that she has not been severely impacted by the long-term sexual abuse of her by her parents and I take her suffering very much into account in deciding the appropriate sentence. The presumption of harm is not rebutted, and the long-term effects are not yet known. However, I acknowledge Caitlin’s bravery, resilience and positivity and I do wish her well in the future.
25 In determining the appropriate sentence, there are other relevant factors for me to consider. The first of these is that as you both pleaded not guilty and continue to deny the offences, there is no remorse as a mitigating factor, and you do not receive the almost inevitable benefit that accrues to a person who has pleaded guilty[11].
[11]Burgess v R [2017] VSCA 59 , [37]
26 Next, neither of you has a criminal record, and so you are to be sentenced as having good character until you began committing these offences in 2006. Neither of you has committed any offences since this offending stopped in 2013. It follows that you are both in custody for the first time, having never committed any offence before, and I take that into account in deciding the appropriate sentence.
27 Turning to matters personal to you, Mr Molyneux, you are now aged 48. You were born in El Salvador where tragically, your father was killed in the civil war when you were aged 13, in about 1983. You, your mother and older brother and his wife came to Australia via the USA the next year as refugees from that war. Apart from experiencing your father’s death, you witnessed the dreadful sight of bodies in the streets. I am told that your family are distressed by your current situation, but remain supportive of you. This support is important for your rehabilitation.
28 In Australia, you learned English and studied, ultimately completing your VCE, and after an apprenticeship, you became a panel beater. You were in this occupation for many years until you became the full-time carer of your wife.
29 You were assessed by psychologist, Dr Barth, who provided a report to the court[12]. He found that you reported no ongoing trauma related symptoms or acute anxiety arising out of your shocking childhood experiences. You do have moderate depressive symptoms which are in reaction to finding yourself convicted and in prison.
[12] Exhibit R1
30 Dr Barth assessed your risk of re-offending using instruments available to him as a psychologist. He was somewhat hampered by your unwillingness to fully discuss what is called your sexual adjustment. You did tell him that your wife’s physical ailments have contributed to significant issues with sexual intimacy in your marriage. On the one hand, that leaves open the conclusion that this contributed to your offending. On the other hand, you also told Dr Barth that your physical intimacy with your wife happened relatively rarely, which may be seen as a continuation of the denial of the offending in which she participated. I do not overlook that the offending ended five years ago, and that your comments to Dr Barth may reflect the situation in more recent years than during the period of offending. The time frame about which you were speaking to him is unclear.
31 Dr Barth thought that your understanding of the '"noxious" impact of sexual abuse on children remains relatively superficial, and that your denial of sexual interest in any female child is implausible given the nature of the offending of which you have been found guilty. On that basis, he considered you to have significant psychosexual pathology and a grossly distorted concept of sexual boundaries. He said you required participation in a comprehensive sex offender program at the earliest possible juncture. I am aware that if you continue to deny the offending, no such program is likely to be forthcoming while in custody.
32 You have no mental disorder and are of average intelligence. Dr Barth assessed your overall risk of re-offending as moderate. I accept that assessment, on the basis that you will no longer have access to female children of the family, and that is the community that must be protected from you, rather than the wider community.
33 Dr Barth also made treatment recommendations, which I strongly encourage any treatment providers to adopt.
34 On balance, given your family support, lack of criminal history and period since the offending ceased, I find that your prospects of rehabilitation are fair, but would clearly be better than that, if you were to engage in intensive, structured treatment as recommended by Dr Barth.
35 I take into account that you are hearing impaired, which will make prison life difficult for you, for example in obtaining batteries for your hearing aids, which you will require more frequently due to the noise of a prison. Further, your counsel submitted that as you are not large in stature, and potentially have cultural as well as language differences from your fellow prisoners, you may be more vulnerable than other prisoners without these features. I take these matters into account.
36 Turning to you, Ms Molyneux, you are now aged 56. You were also born in El Salvador and suffered trauma during the civil war. Your family of two parents and seven children were in hiding for a number of years and moved around. You migrated to Australia in 1987 at age 25. One of your brothers was killed when he returned to El Salvador. You completed 12 years of schooling in El Salvador, and report wanting to become an accountant. I received certificates relating to your subjects in fourth year at secondary school which show your interest in that area[13]; however I note that on recent testing, you were found to have borderline intelligence[14].
[13] Exhibit D2
[14] Exhibit D1
37 You also suffered trauma from abuse by family members. You were only 14 when you had your first daughter and were admonished by your mother, who you describe as abusive and controlling. You married for the first time at age 24, before coming to Australia, and this partner was very violent towards you and the children, which included three sons you had together. You also report that your sons were verbally and physically violent towards you, particularly after their father left you, but I note that your oldest daughter and one of your sons remain supportive of you at this time. You married Mr Molyneux in 2001, and Caitlin was born that year.
38
You are in poor health. I received a letter from your general practitioner whose clinic you have been attending since 2001[15]. You were taking regular painkillers for generalised body aches and pains in 2001, which was expanded to
non-steroidal anti-inflammatory drugs in 2002, and anti-depressants from 2003.
[15] Ibid
39 The doctor lists your current medical issues in a long list, with the main issues affecting you physically and psychologically being Sjogren’s syndrome and severe anxiety and depression. Before you went into custody, you were seeing a multitude of specialists and taking many medications. I was told by your counsel that a report was sought from your rheumatologist but he was not forthcoming with that. I said on 16 November during the plea hearing, that I would sign an order for short service of a subpoena, but I received no request.
40 I take into account that you are very unwell, both physically and mentally, that you do not speak fluent English and have used an interpreter throughout this case, and that these factors, together with being separated from your husband, who is your carer, and in custody for the first time, will make your time in prison more onerous.
41 As should be clear from my findings about the offending, I do not find you significantly less culpable than Mr Molyneux in the charges you both faced, and you will receive a term of imprisonment, as there is no alternative in the circumstances. However, your sentence will be reduced and your non-parole period will be lower because of your ill health. I note that despite the remand order when you first entered custody including a note as to your ill health and medication, you did not get the medication required for Sjogren’s syndrome and you lacked the language to ask for it. Further, you have had a fall while in custody, in which you apparently tore the ligaments in your shoulder and you are still in a sling today.
42 I received a report from Ms Cidoni, psychologist[16], who summarised the matters I have just referred to, and I accept her opinions that your depression is heightened by your current situation and your mental health may deteriorate further in custody. Also, she assessed your risk of re-offending and found you were in the low risk category. I accept that assessment.
[16] Exhibit D3
43 On balance, given support from two of your children, lack of criminal history, your ill health, and the period since the offending ceased, I find that your prospects of rehabilitation are reasonable, but you maintain your innocence, and your rehabilitation will be enhanced if you accept what happened, and participate in therapy.
44 For both of you, I take into account sentencing practices at the time the offences were committed as one of the factors in the sentencing synthesis, noting that the maximum sentences were the same then as now. As a result, it is unlikely that a materially lesser sanction would have been imposed[17]. Further, for the offence of incest, the Court of Appeal has found that the past sentencing practice was inadequate[18], and the High Court has made it clear that a sentencing judge is not bound by an inadequate past sentencing practice. Ultimately the sentence I impose must be just and appropriate in all the circumstances[19].
[17]Thrussell (a pseudonym) [2017] VSCA 386; Stalio (2012) 46 VR 426
[18]Dalgliesh No 1 [2016] VSCA 148, [9]
[19]Dalgliesh [2017] HCA 41, [63]
45 Before I turn finally to the sentences, there are three further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from each of you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from each of you. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the sample that will then be taken is a blood sample and the police may use reasonable force to enable such a procedure to take place.
46 The second matter is that as a result of my sentence today, you each become a registrable sex offender. You will each be required within 7 days of your release from custody, to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. My associate will now ask you each to sign a document to acknowledge that you have received notice of these reporting obligations.
47 Would counsel attend the dock to assist, in case your clients have questions.
48 COUNSEL: Yes, Your Honour.
49 HER HONOUR: I am sorry, is there - Mr Richter, is there an issue?
50 CUSTODY OFFICER: He cannot take the documents here.
51 HER HONOUR: Well, that happens with every other prisoner that I sentence.
52 MR RICHTER: Yes.
53 CUSTODY OFFICER: Okay, if the court has given permission.
54 HER HONOUR: Thank you. The third matter is that if you are sentenced to prison on Charges 1 and 2, you are both to be sentenced as a serious sexual offender on Charge 3 and you, Mr Molyneux will be sentenced as a serious sexual offender on the rest of your Charges 4 to 8. That means the protection of the community is the principal purpose for which sentence is imposed. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. However, the prosecution do not seek that, and I do not intend to do that.
55 It is also necessary for the sentences I impose from charge 3 onwards to be wholly cumulative unless I order otherwise, because of your status as serious sex offenders. Because of the factors that operate in your favour and that were outlined on the plea, I have decided to order some concurrency. In saying that, I have also had regard to the limits that the serious sex offender sentencing regime places on the application of the principle of totality[20].
[20]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
56 In sentencing you both, I take into account that deterrence, especially general deterrence, is of the utmost importance in cases involving sexual offending against children, and even more so when the child is your own. That means that by my sentence of you the court must seek to deter other people from committing sexual offences against their children.
57 Counsel for both of you submitted that my sentence need not seek to deter you from reoffending. I have considered that and although the risk is low or moderate, I find that specific deterrence has some role to play, but more so for you, Mr Molyneux.
58 The court must impose a sentence that is just in all the circumstances and that reflects the community’s abhorrence of incest, with the grave breach of trust, and damaging effect on family relationships. These principles apply, no matter how long ago the offending occurred.[21] Stand up please, Mr Molyneux.
[21]DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59
59 Mr Molyneux, you are convicted and sentenced as follows;
60 Charge 1 – incest as a course of conduct – 9 years’ imprisonment;
61 Charge 2 – indecent act as a course of conduct – 3 years 6 months’ imprisonment;
62 Charge 3 – indecent act as a course of conduct – 5 years’ imprisonment
63 Charge 4 – incest – 6 years 6 months’ imprisonment;
64 Charge 5 – indecent act – 2 years’ imprisonment;
65 Charge 6 – incest – 7 years 6 months’ imprisonment;
66 Charge 7 – incest – 6 years 6 months’ imprisonment
67 Charge 8 – indecent act – 20 months’ imprisonment
68 The sentence imposed on Charge 1 is the base sentence. I direct that two years of the sentences imposed on Charges 3 and 6; 12 months of the sentence imposed on Charge 2; and 6 months of the sentence imposed on Charge 8 be served cumulatively on the sentence imposed on Charge 1 and on each other. All other sentences are concurrent.
69 That makes a total effective sentence of 14 years 6 months’ imprisonment. I direct that you serve a minimum term of 11 years before becoming eligible for parole. You may be seated.
70 Ms Molyneux, if you are able to stand, please stand. You are convicted and sentenced as follows;
71 Charge 1 – incest as a course of conduct – 6 years 6 months’ imprisonment;
72 Charge 2 – indecent act as a course of conduct – 2 years’ imprisonment;
73 Charge 3 – indecent act as a course of conduct – 5 years’ imprisonment.
74 The sentence imposed on Charge 1 is the base sentence. I direct that 6 months of the sentence imposed on Charge 2 and 12 months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and on each other.
75 That makes a total effective sentence of 8 years’ imprisonment. I direct that you serve a minimum term of 5 years 6 months years before becoming eligible for parole. You can take a seat again.
76 I declare that you have each served 36 days in pre-sentence detention including today. These will be deducted administratively from your sentence.
77 Mr Molyneux, I declare that you have been sentenced as a serious sex offender on Charges 3 to 8 and direct that this be noted in the records of the court.
78 Ms Molyneux, I declare that you have been sentenced as a serious sex offender on Charge 3 and direct that this be noted in the records of the court.
79 Are any other orders required?
80 MR GRANT: No, thank you, Your Honour.
81 HER HONOUR: Well, I thank everyone for their assistance throughout this long - running and difficult case. I thank you, Madam Interpreter, for your assistance today. I will now adjourn the court sine die.
82 Yes, thank you, the prisoners can be removed.
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