Director of Public Prosecutions v Moore (a pseudonym)

[2022] VCC 842

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

Jay Moore (a pseudonym)

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JUDGE:	Her Honour Judge Syme
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2022
DATE OF SENTENCE:	6 June 2022
CASE MAY BE CITED AS:	DPP v Moore (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 842

REASONS FOR SENTENCE
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Subject:Sexual assault of a child under 16

Catchwords:              Family relative – Persistent yet opportunistic – degree of planning – low to moderate risk of reoffending – Verdins

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Narang v The Queen [2022] VSCA 103; Lugo v The Queen [2020] VSCA 75; DPP v Greene [2019] VCC 438

Sentence:10 months imprisonment; 2 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Mitchell Wilson	Ms Jacquelyn Verkade
For the Accused	Mr Hugo Moodie	Mr Ben Hanley

HER HONOUR:

Background

1Jay Moore,[1] you have pleaded guilty to 1 charge of sexual assault of a child under 16.

[1]A pseudonym.

2The maximum penalty for this offence is 10 years imprisonment.

3The standard sentence for this offence is 4 years imprisonment.

4A court must take the standard sentence into account as a relevant sentencing factor when sentencing for a standard sentence offence. But, as with the maximum penalty, it is a legislative guidepost. It does not affect the instinctive synthesis, permit ‘two-stage sentencing’, or otherwise affect matters a court may or must consider when sentencing.

5In addition to the sentence imposed today, you will be subject to sexual offender registration requirements for a period of 8 years.   

6You have no prior convictions. In the circumstances of this offence, a lack of prior convictions and therefor, an assumption of good character, is of little assistance. It was your good character and place in the family that enabled the family to trust you to the extent that the victim was in a vulnerable position in the house with you.

7On 31 December 2019, the victim and her family attended a New Year’s Eve party at the home of you and your wife, who is the aunt of the victim. The victim was aged 15 years and 7 months and many family members were present. You were observed by many people to be intoxicated and behaving in a generally inappropriate manner towards women, particularly, toward the victim and her mother.

8At approximately 6am, the victim’s mother left the party, but there was insufficient room in the car for the victim to leave at that time. As a result, it was arranged that the victim would stay at the premises. By about 7am, guests had either left or were organising to go to bed.  I was told that the victim, her uncle, Phillip Wood[2] and you, were all to sleep in the lounge room as your bed was fully occupied. 

[2]A pseudonym.

9The complainant was lying on the foldout couch with her uncle. You brought a mattress into the lounge and pestered the complainant to sleep on the mattress.  She said that she wanted to stay up on the couch. Eventually, she moved to the mattress. You continued to drink, and refused to lay down, when requested by Wood.

Offending

10The victim was awoken by the feeling of your finger touching, what the prosecution says, was the victim’s vagina, underneath her underwear.  It seems that the prosecution position is that penetration did not occur, so their position seems to be, as accepted by you, that the outer genital area was touched. That is, her vulva.

11The victim reports that she froze in shock. At this point, you removed your finger out of her underwear. The victim describes the touching as having lasted for a few seconds.

12Sitting down and apparently hunched over, Wood called out to you and asked, “what are you doing, [Jay]?”. The victim reports seeing you leave the sofa bed. Wood told you to go outside so that he could talk to the victim. She was laying on her back with her head turned, with a blanket over her.  She indicated that she did not want to be left alone.

13An altercation between you and Wood subsequently took place and this was observed by the victim. At some stage, she retreated to the bathroom.

14The next day, you sent a text message to Wood stating : “This is not my character I would never do something like this but it has happened, it was never my intent to do such a thing” and “I feel disgusted in my action and behaviour heavy intoxicated to the point of blurring out isn’t any excuse”.

15This seems to be a partial admission to some sexual misbehaviour, and perhaps, an early expression of, at the least, regret.

16Family ructions continued for some time and there was some remonstrating with you, by others, and some suggestions from family members, that the victim may have somehow been responsible for your offending. This is obviously wrong on several levels. She was 15. She was asleep.

17You were told that the matter would be reported to police. You then sent a text of regret for how your actions had split the family. Eventually the matter was reported to police. In May 2020, the complainant participated in a VARE interview.

18You were arrested and interviewed in July 2020.  There were several delays and adjournments while preliminary hearings were planned. The original indictment contained more serious charges. You offered to plea to the current charge in October 2021, and that plea offer was accepted in December 2021. It is conceded to be an early plea.

Objective gravity of the offending

19The age of the victim, at around 15 years and 7 months, is at the upper end of the age range for the charged offence. That is not a mitigating matter. It simply reflects a less serious offence than a similar offence against committed against a much younger child. There is no dispute that you were well-aware of her age. The fact that you were some 20 years older than the child increases the objective gravity of the offending.

20The prosecution accept that the offending was opportunistic. However, I note that you asked the child to sleep on the mattress many times, which she eventually did. This enabled the offending to occur more easily, so while I accept that it was opportunistic, there was some immediate planning.

21The prosecution opening includes an observation that you were behaving in a sexually inappropriate manner towards the child earlier in the evening; indicating a concerning sexual suggestion toward this young girl and a lack of propriety. So, while I accept that your offending was opportunistic, your earlier behaviour indicated an inappropriate sexual interest in the child.

22It is accepted that the sexual assault was of a short duration. However, the contact was inside the child’s underwear, skin on skin, and a serious assault.

23The most serious feature of the assault is the fact that the victim was asleep when you assaulted her. It is not known whether you committed the offence when she was asleep so you would not get caught or whether you gave the matter little thought, however, whichever is correct, an assault in these circumstances is a serious affront to a child.  

24She was awoken by being so assaulted. It is this feature of the offending that, according to her victim impact statement, still haunts her. For a child who is asleep, in a home where she ought to feel safe, your sexual assault on her was a serious and grave breach of trust. As noted in her immediate response, your offending caused her great anguish and fear.

25It was submitted that you were a nonbiological relative of the child. I cannot see this as a mitigating matter. You are a member of the family and as such, were trusted not only by the victim, but by her family. It was because of that family relationship that consideration was given to the victim remaining at the home at the end of the party. The trust relationship was between you, the child and her entire family.

Mitigating features of the offending

26The length of the actual assault was brief. It was also submitted that as the offence was not accompanied by violence or coercion, these features, or lack thereof, ought to be treated as mitigating matters. This submission cannot be accepted. The victim was asleep at the time and therefore rendered helpless, to any advance by you.  No coercion or violence was required for you to offend. This is simply a lack of a potential circumstance of aggravation.

27Your counsel further submitted that there was no grooming. As I observed, if that had been the case, there would have been another charge laid.  I note your previous behaviour that evening is not relied on in any such way by the prosecution.

28It is observed that you were well-intoxicated that evening, both before and after the offence. Your counsel did not suggest that this was, in any way, a mitigating circumstance. You intoxication was, however, used as an explanation by you in your conversations with Dr Barth. As a positive consideration you have apparently recognised this and have undertaken to reduce your alcohol consumption with the assistance of Alcoholics Anonymous and the like.

29I do not accept that your alcohol consumption was directly related to your sexual offending against a child. The effect of intoxication may have, however, reduced your usual inhibitions in acting on this apparent attraction. There is no evidence in any literature I am aware of, nor is it submitted that intoxication causes sexual offending against a child, unless there is some other underlying pathology.  

30Taking all the aggravating and mitigating matters into account, I am of the view that this is an offence of below-midrange objective seriousness but not significantly so. This finding is a matter that will be taken into account together with any appropriate consideration for your early plea.

Personal circumstances and background

31In a report tendered by consent on 27 May 2022, you reported to Dr Barth that you are 37 years old. Having been interviewed by Dr Barth on two occasions, and after having administered and interpreted appropriate psychological tests, Dr Barth reported that you presented as sad and tense.

32You report a normal and positive childhood. Your birth family and you are reportedly close, and they still support you. You report some difficulties in work and business matters but are nevertheless supported by your current employer/business partner who has provided a character reference in your support.

33You also report what appears to be a normal sexual development. You married your partner when you were in your 20s, and you have children.

34The psychologist reported that you indicated your primary attraction to be towards adult women, however, he noted you had considerable difficulty discussing the factors which motivated your offending. He observed that you display a hidden egocentric and immature approach to relationships, and that this has contributed to a superficial understanding of mature, adult intimacy. He observed that you tend to focus on satisfying your own needs as opposed to focusing on the needs of others. He observes that you and your wife have a turbulent relationship.

35He also makes observation of alcohol-related issues and indicates that your alcohol abuse would be sufficient to warrant a diagnosis of an alcohol use disorder in the moderate to severe range, currently, in early remission.

Remorse

36Your remorse was expressed quickly to family members. Your discussion with Dr Barth shows that you are beginning to understand the consequences of your offending. Your remorse is beginning to transition from an expression of self-guilt and self-pity to an elementary understanding of the consequences for the victim of your offending.

Character

37I have also received and read two-character references tendered on your behalf. The character reference from your employer indicates ongoing support for you and further indicates that you have expressed remorse for your current predicament as opposed to the commission of the offence itself.

38The other character reference similarly indicates your expression of regret and indicates that the report writer considers you to be a valuable member of the community. It is noted therefore that you do have community support notwithstanding there may be some difficulty and break down in your personal family circumstances.

Synthesis

39After taking into account static risk factors of age, your lack of criminal history, your long-term relationship and your offending against a related female correlate, Dr Barth concludes that you have a lower, rather than a higher, risk of reoffending.

40Dr Barth observed the inherent limitations of the static risk assessment protocol. He observed, using more dynamic factors, that your main risk factors included: your developing insight into your behaviour and cognitive distortions which may have contributed to your behaviour.

41Evaluating your risk within these parameters indicates, a low to moderate risk of reoffending. He recommends that this risk be reduced through the completion of a specialist sex offender treatment program.

42Separately, Dr Barth considered that you present with sufficient symptoms to warrant a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. He observes that your current symptoms are primarily focused on your guilt for the offending and rumination of the potential consequences.

43Dr Barth’s report is detailed and helpful and I commend it to those who will be supervising you in due course.

44Dr Barth recommends that you undertake or continue to undertake sex offender counselling and mental health treatment by way of psychological assistance to enhance your ability to cope with personal stresses more adaptively. He also recommends and alcohol-related counselling.

45Dr Barth further observes that should a custodial sentence be imposed, you are likely to be a vulnerable prisoner, particularly, when considering your limited skills for your depressive and anxiety related symptoms.

46I accept that a custodial sentence will be more burdensome on you than someone without your adjustment disorder that features anxiety and depression. This will be taken into account under the Verdins principles.  

47It is correctly submitted that your mental disorders do not reduce your moral culpability for the offending behaviour as a whole. They are, however, relevant to the length and type of sentence that ought be imposed in other ways.

48For matters such as this, it is appropriate to consider all the sentencing requirements as contained in section 5 of the Sentencing Act. As is frequently the case, requirements for sentencing often pull in different directions. It is important to denounce conduct such as this on behalf of the community and to recognise the harm done to the victim. It is also necessary to consider both general and specific deterrence. It is further necessary to ensure, as much as possible, that you are rehabilitated for the community’s benefit.

49I have been referred to several cases by counsel and I thank them for their assistance. The Court of Appeal decision in Lugo, while containing useful commentary on the standard sentencing regime, is not of great assistance to the current case. The case of Nerang, which concerned rolled up charges relating to the touching of a child’s breast and Vulva, involved either a medium or medium to high breach of trust. There were two charges and the offending continued in the course of a supposedly therapeutic teaching process for a duration of half an hour. The sentence imposed was four years imprisonment with a 19-month non-parole period.

50I have also been referred by counsel to the case of Greene, a 2019 decision by His Honour Judge O’Connell. The circumstances in Greene were somewhat similar in terms of the actual touching involved but a later plea of guilty was entered. I cannot see any feature in Greene’s case that is as serious as an offence being committed while a child is asleep and therefore, helpless. So, while that case is also helpful, it is not directly comparable.

51I have now received the sentencing assessment report prepared on your behalf. The report writers obviously had access to Dr Barth’s report. It indicates that you are suitable for supervision upon your release from custody and that programs will be made available for you.

Sentence

52Having considered all of the above matters, I am of the view that nothing but a custodial sentence is an appropriate disposition for this matter.

53Taking into account what I consider to be your reasonable prospects of rehabilitation, and need for supervision and treatment within the community, I propose to impose a term of imprisonment of 10 months duration and a Community Corrections Order of 2 years duration that will commence after the completion of your term of imprisonment.

54I note there is no presentence detention to be taken into account.

55The terms of the Community Corrections Order are that you: be supervised as directed by Corrections; undertake alcohol abuse treatment and rehabilitation; undertake mental health treatment and undertake a Sex Offenders Program.

56On your release from custody, you will be required to report to corrective services that you accept this supervision.

57Additionally, as you have been sentenced for a Class 2 offence under the Sex Offenders Registration Act, you will be required to comply with reporting obligations under that Act for a period of 8 years.

58Finally, pursuant to section 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of 18 months imprisonment with a non-parole period of 13 months.