Director of Public Prosecutions v Moonsamy

[2025] VCC 332

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-01690

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN MOONSAMY

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2025
DATE OF SENTENCE:	25 March 2025
CASE MAY BE CITED AS:	DPP v Moonsamy
MEDIUM NEUTRAL CITATION:	[2025] VCC 332

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Charges of sexual penetration of a child under 16, producing child abuse material, grooming of a child under 16 and possession of child abuse material

Legislation Cited:

Cases Cited:

Sentence:                 Total effective sentence of 5 years and six months . Non-parole period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Parnham	Office of Public Prosecutions
For the Accused	Ms G. Connelly	Marshall Jovanovska Ralph

HER HONOUR:

1Dylan Moonsamy, you have pleaded guilty to four charges of sexual penetration of a child under 16 years (Charges 1, 3, 4 and 5) the maximum penalty for that offence is 15 years. Charge 3 is a rolled-up charge. This offence is also a standard sentence offence with the standard sentence being six years pursuant to s5A of the Sentencing Act 1991 (the Act).

2You have also pleaded guilty to three charges of producing child abuse material (Charges 2, 6 and 7).  Charges 6 and 7 are rolled-up charges; one charge of grooming (Charge 8), involving a child under 16 in the production of child abuse material (Charge 9), and possession of child abuse material.  The maximum penalty for all of these other offences is 10 years. 

3The circumstances of your offending are set out in the summary of prosecution opening dated 23 February 2025 (Exhibit A) and can be summarised as follows:

4Crime Stoppers received information relating to online contact between you and two 13-year-old girls, neither of whom were the subject of this offending.  As a result of that information, police executed a search warrant at your house in Werribee and seized two mobile phones and a tablet.

5Analysis of one of the phones revealed nine video recordings and 18 images of an underage female and male engaging in acts of sexual penetration in the back seat of a car.  Metadata indicated the material was produced on 20 November and 18 December 2022 in Yallourn North, Victoria.

6Police identified the girl depicted as AA and a VARE was conducted with her on 28 February 2024.

7You met her on Snapchat. You commenced chatting in October 2022 and arranged to meet up on three occasions when you travelled to Yallourn from Melbourne.

8The first time, on 20 November 2022, you met her at a skate park, then you drove to a carpark close by and she separately walked there.  You then drove down a gravel road near the pony club, and again she walked there.  Once there you both got in the back of your car, you sat and spoke for a while before getting undressed. You had penile/vaginal intercourse in the back of the car (Charge 1 – sexual penetration of a child under 16).

9You withdrew your penis and ejaculated on her stomach, you did not wear a condom.  You filmed this activity on your mobile phone (Charge 2).

10You were aware this was the first time that she had had sex.

11You met up again at that location near the pony club on 18 December 2022. In her VARE AA revealed that you had penile/vaginal intercourse in the backseat of your car on this date, the second time you met up.    

12You also recorded the sexual offending on this occasion (Charge 6), with eight videos showing the specific acts including penetrative acts the subject of the charges as set out in paragraphs 22(a)-(h).  (Charge 3, rolled up charge relating to paragraphs (a), (b), (f) and (g)); (Charge 4) and (Charge 5).

13All of this sexual activity took place and was video recorded between 12:58 and 2:12 pm.  Between 1:43 and 2:12 pm, you also took photographs of AA naked and in various poses (Charge 7, as listed or described in paragraph 24 through (a) - (r), again a rolled up charge).

14On both occasions AA was aware you were taking photos of her as you had sought her permission, but she was unaware you were videoing her.

Offending Against TT – Charges 8 and 9

15Analysis of this same mobile phone showed you using two Snapchat usernames: 'dylvsevil' and 'lydiahawking'. You used both of these profiles to chat with TT.  You met her online speaking on social media and gaming platforms.  You told her you were 19 and lived in Melbourne.  She told you she was 13 and in Year 9 at school.

16She had told you that she wanted a new laptop and you offered to buy her one. Despite her refusal, you purchased a laptop for $800 and sent it to her at the post office in Avoca where she lived. 

17You sent her pictures of your penis by Snapchat and she sent you pictures of herself revealing her breasts (Charge 9).  Additionally, throughout the time TT and you were connected online, you used a different account under a female name to speak with her in conversations in which you encouraged TT to continue contact with you and meet you in person.  The details of those conversations are in paragraph 32.  It is the totality of your communication with TT that constitute Charge 8 – grooming for sexual conduct with a child under the age of 16.  These communications took place between 5 April and 30 May 2023 and ceased once the warrant was executed.   

18Analysis of the tablet seized on 7 June located one image and 14 videos on the device, categorised as child abuse material (Charge 10 – possession of child abuse material).  The descriptions and categorization of the material is included in paragraph 35 (a) –(o).

19Police executed a further search warrant at your home on 20 March 2024. During the search you were asked whether police would find anything on the devices at the house, to which you replied 'Not anymore, I'm not attracted to kids anymore', and 'I have been trying really hard. Maybe there was one night that I was doing something stupid'.

20Later in your record of interview you gave largely 'no comment' answers but did however, refer to the fact you needed and/or were getting help. 

Victim Impact  

21Although no victim impact statements were filed, it is well understood that offences relating to sexual activity with a child, are founded on a presumption of harm, such harm being described as 'long-term and serious harm, both physical and psychological harm to the child'.

Personal Circumstances

22As to your personal circumstances, I received the following material described in written submissions filed by your counsel::

i.Educational material;

ii..Mental health reports;

iii.Father's health records;

iv.Mother's health records

v.Character references.

vi.Letter of remorse from you.

vii.Report from treating psychiatrist, Dr Rakov.

23You were 30 at the time of the offending and are now 32.  You grew up with your parents and brother in Durban, South Africa.  Your father's employment required him to travel overseas and he was frequently away from home.  In the late 1990s both your father and brother were subject to violent attacks in Durban.  As a consequence in 2005, when you were 13, the family migrated to Adelaide, then later moved to Melbourne. You are an Australian citizen.

24You had a disruptive primary school education.  I was informed that your parents recalled that you were diagnosed with autism in Grade 2. However, the family did not acknowledge the diagnosis on account of the stigma associated with such a disability and you did not receive any therapy or additional assistance.  Because of your father's work you regularly changed schools and were often isolated.

25You completed most of your high school in Australia, Years 7 to 10 in Adelaide, and Year 11 and part of Year 12 in Melbourne.  You studied the International Baccalaureate at the British International School, graduating in 2012.  You returned to Melbourne and undertook a Diploma of Business Enterprise at Victoria University, graduating in 2013.  You then undertook a Bachelor of Business degree at Victoria University majoring in international trade and logistics between 2013 and 2017.   You are currently completing your Certificate IV in Work Health and Safety at Swinburne University. I was informed the last day of the class was 22 March and you will then complete all required assessments by mid-April 2025.

26You have been consistently employed since completing your studies. (See paragraph 18 of defence submissions).  You are currently a health and safety advisor in a transport and logistics company.   

27As to your current situation you live at home with your parents.  Both of them have serious health conditions and you provide important emotional, practical, and financial support for them.  Your father is 65. He was diagnosed with diabetes and he suffers from the following conditions:

a)Severe hearing loss requiring hearing aids in both ears.

b)Diabetic retinopathy (blindness arising from diabetes).

c)Diabetes, including end stage renal failure requiring haemodialysis since 2020.  He received a kidney transplant on 24 December 2024.

d)Anxiety and depression. 

28Your mother is aged 50 and suffers the following health conditions:

a)Mixed anxiety, depression and panic disorder.

b)Diabetes.

29I received character references from your parents, family members and friends.  They attest to the high level of assistance you provide to your parents.  Each of the authors were in Court.  It is clear that family and friends remain supportive of you. 

30It was submitted that your mental functioning was connected to your offending. Based on information from your family, but also relevant professional opinions, that you had longstanding issues with autism and that you currently also have symptoms of depression. Doctor Rakov opined:

that very near immediately on [your] examination by [him], [you] exhibited traits consistent with autism … including sensory sensitivities …  and that [you] reported struggles with understanding and responding to social cues which have impacted your ability to form and maintain relationships.

31She considered your behaviour was influenced by social isolation poor judgement and difficulties with interpersonal relationships rather than a fixed sexual interest in minors.  Dr Rakov was of the view that your offending was best understood within the context of your social and developmental history; that these factors likely contributed to poor judgement in your online interactions, a lack of awareness regarding age-appropriate boundaries, and a failure to recognise risk in social and sexual contexts. (See also the report of Kim Dowse, psychologist dated 24 February 2025.)

32It was submitted there was a wealth of material regarding your social isolation from childhood until current day; that there was a realistic connection between this offending, and your mental functioning, and that Verdins applied. 

33The prosecution conceded the application of limbs 5 and 6 of Verdins, however disputed the existence of any connection to your offending or alternatively, that the connection was not at the level as submitted by defence. That is, your social isolation and background should be viewed in the context of your upbringing, regular movement of your family and your employment and relevant abilities in that context, reflective of your capacity to learn and adequately able to exercise interpersonal qualities.  Additionally, the prosecution pointed to features of the offending, namely that it was predatory behaviour; the use of a false identity, reflective of you knowing what the relevant boundaries were.

34Given that submission, I queried whether the Prosecution required Dr Rakov to challenge her opinion, though counsel indicated that they did not.   In those circumstances I accept that there is a relevant connection between your functioning and your offending. 

35Further, I accept your autism, depression and anxiety will make your experience of custody more onerous and your functioning will deteriorate in the custodial environment.   

36As to family hardship, your parents will suffer hardship as a result of your imprisonment. You are the main source of emotional, and practical care and financial support.  You are aware your parents will struggle without you.  Your father has applied for NDIS assistance to cater for his health needs whilst you are in custody. He will require alternative assistance to attend his medical appointments as well as assistance with medication management, including injections of insulin.

37Both of your parents are suffering depression and anxiety as a direct result of learning about your offending and the prospect of your imminent imprisonment. Your father's treating psychologist anticipates a rapid deterioration in his mental health.  Similarly, your mother's treating psychologist anticipates a detrimental impact on her mental health.

38You will not see your father whilst you are in custody because your father is immunocompromised.  I was informed that you are acutely aware that your offending and its consequences have harmed and will continue to harm your parents. You are worried about their wellbeing while you are in custody. In particular, you fear you may never see your father again after being sentenced.

39It was not submitted that the family hardship met the high threshold of 'exceptional'. However, the anguish felt by you is an additional punishing consequence of your offending.  It will make your experience of custody more burdensome and should operate as a powerful deterrent.

Plea of guilty and remorse

40You pleaded guilty at the committal mention stage or early in the proceedings.  Your plea is of significant utilitarian value and has saved the time and cost of a contested hearing to the justice system.  You have also spared the victims and witnesses from giving evidence.  Your plea indicates acceptance of your responsibility for the offending and is reflective of actual remorse. Such is consistent with the material provided from family and friends, the information you provided to professionals and the letter from you, provided to the court.

Prospects of Rehabilitation and risk of reoffending

41Your counsel submitted you had excellent rehabilitation prospects, particularly given the steps you have taken since the 7 June 2023 when the warrant was executed. 

a)you enabled your parents to know your location at all times via the
LIFE-360 application;

b)on 22 June 2023, you 'unadded' TT from your snapchat account. This was before TT had made her VARE and before you had been interviewed by police for any offending;

c)by July 2023 you had self-referred to a psychologist for sex offender treatment. That is well before the offending against AA was known to police.  You have continued to engage in treatment to date. You have been an active, committed and honest participant in your treatment; 

d)you also sought treatment from a psychiatrist;

e)your plea of guilty and remorse;

f)your continued family support;

g)you have no prior or subsequent matters and

h)Dr Rakov’s opinion that you are not at risk to the sexual safety of others or as to general offending.

42I accept that you have very good rehabilitation prospects.

Objective Seriousness of the Offending

43This offending was objectively serious.  As recognised in Roberts v King [2023] VSCA 92, the sexual penetration offence covers a wide range of sexual activity. In every case the victim is a child whose welfare is sought to be protected by this offence, given their age. Although such an offence is serious, some are for the reasons listed in paragraph 17 of that decision, more serious than others.

44In your case matters of relevance are:

a)Age difference – you were 17 years older than both AA and TT;  

b)Once a connection had been established through social media with AA, the offending was premeditated and planned.  You travelled a significant distance to meet her, approximately 140 kilometres, then arranged for you both to travel separately to avoid being caught together in the local country town, where you offended in discrete or isolated locations.

c)In relation to TT, you posed as another individual and as a female persona to connect with her over a number of weeks, to further facilitate and encourage her to connect with you in the manner you desired though no meeting ever occurred.

d)The offending occurred over a total period of approximately seven months.  I note that it is not continuous over this period;  

e)You were motivated to offend for your own sexual gratification, notwithstanding the age difference between you and your knowledge the relationship was illegal.

f)You did not take any measures to engage in safe sex, exposing AA to the risk of sexually transmitted disease or pregnancy.

45Charges 3, 6 and 7 are rolled-up charges.  They were not isolated instances however whilst the Court must consider the totality of the circumstances of the offending, each charge remains a single charge, and the maximum penalty is limited to that of and for each single charge.  The categorisation of a 'rolled up charge' will usually be considered more serious than a single instance and/or a 'representative charge'.

46You will be sentenced as a serious sex offender on Charges 3 - 10

47I take into account the standard sentence.  As indicated, sexual penetration of a child under 16 years has a standard sentence of six years.  It is authoritatively established that the standard sentence is part of the instinctive synthesis in factors required to be considered by the sentencing judge for that offence.  It is a legislative guidepost, similar to the maximum penalty. 

48Both parties referred to some comparable cases for the offence of sexual penetration of a child under 16.  They provide some guidance, but their assistance is limited given the different circumstances of offending and particularly in your case, your personal circumstances, including rehabilitation prospects. 

49Denunciation and general deterrence are particularly relevant when sentencing for sexual offences against children. Just punishment and denunciation are also important considerations.  The objective seriousness of your offending must be considered in the sentencing exercise along with all matters in mitigation including your plea of guilty, remorse, level of functioning personal circumstances and very good rehabilitation prospects. 

50The prosecution submitted a term of imprisonment, with a head sentence and non-parole period was the only disposition reasonably available.  Your counsel conceded that was the only appropriate disposition. 

51The serious offender provisions apply in respect of all the sentences imposed after that imposed on Charge 2.  That brings into operation s6D, s6E and s6F of the Sentencing Act 1991. The prosecution did not submit that a disproportionate sentence was necessary to comply with those provisions. I have taken into account principles of totality.

52Additionally, under the Sex Offenders Registration Act 2004, the offence of sexual penetration of a child under 16 is a Class 1 offence and remaining charges are Class 2 offences. Registration is mandatory with a reporting period of life.

53The sentence I am about to impose is lower than the standard sentence for each of the sex penetration charges, the standard sentence being six years.

54Having identified and considered what I regard to be the relevant factors in assessing the sentence, including my assessment as to the nature of your offending and your culpability, against matters including your plea of guilty, rehabilitation prospects and personal circumstances, I have formed the conclusion that is appropriate including that the non-parole period set is less than that prescribed under the standard sentence scheme.  If you could please stand.

55In respect of Charge 1, sexual penetration of a child under 16, you are convicted and sentenced to a term of imprisonment of two years.

56In respect of Charge 2, producing child abuse material, you are convicted and sentenced to a term of imprisonment of two years.

57In respect of Charge 3, sexual penetration of a child under 16, you are convicted and sentenced to a term of imprisonment of four years.

58In respect of Charge 4, sexual penetration of a child under 16, you are convicted and sentenced to a term of imprisonment of two years and six months.

59In respect of Charge 5, again sexual penetration of a child under 16, you are you are convicted and sentenced to a term of imprisonment of two years and six months.

60In respect of Charge 6, producing child abuse material, you are convicted and sentenced to a term of imprisonment of two years.

61In respect of Charge 7, producing child abuse material, you are convicted and sentenced to a term of imprisonment of two years.

62In respect of Charge 8, grooming, you are convicted and sentenced to a term of imprisonment of one year.

63In respect of Charge 9, involving a child in child abuse material production, you are convicted and sentenced to a term of imprisonment of six months.

64In respect of Charge 10, possessing child abuse material, you are convicted and sentenced to a term of imprisonment of three months.

65The base sentence therefore is that imposed on Charge 3, which is for four years.  Six months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 6, and six months of the sentence imposed on Charge 8 will be cumulative on the base sentence, giving a total effective sentence of five years and six months.

66I set a non-parole period of three years.

67Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of seven years with a non-parole period of five years.

68As I indicated, under the Sex Offender Registration Act you will be required to report for the mandatory period which is for life.

69In respect of all the Charges 3, 4, 5, 6, 7, 8, 9 and10, it should be noted that you are a serious sexual offender.

70I declare pre-sentence detention of one day.

71Are there any other matters?

72COUNSEL:  No, Your Honour.

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