Director of Public Prosecutions v Moses and Anor (a pseudonym)
[2015] VCC 1201
•28 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARLYN MOSES (A PSEUDONYM) & DILLAN HAROLDSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 August 2015 | |
CASE MAY BE CITED AS: | DPP v Moses & Anor (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1201 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Hammill | Office of Public Prosecutions |
| For Accused (Moses) For Accused (Haroldson) | Ms J. Dixon QC Ms S. Leighfield Mr G. Boas | Stary Norton Halphen Victoria Legal Aid |
HIS HONOUR:
1 On 7 August 2015 you, Marlyn Moses and Dillan Haroldson, each pleaded guilty to charges contained on Indictment No.C1409943.
2 Ms Moses, you pleaded guilty to sexual penetration of a child under 16, Charge 1; production of child pornography, Charge 3; publication or transmission of child pornography, Charge 4; and indecent act with or in the presence of a child under 16, Charge 5.
3 Mr Haroldson, you pleaded guilty to inciting Ms Moses to make child pornography, Charge 2; production of child pornography, Charge 3; publication or transmission of child pornography, Charge 4; indecent act with or in the presence of a child under 16, Charge 5; possession of child pornography, Charge 6; and failing to comply with reporting obligations under the Sex Offender Registration Act 2004, Charge 7.
4 You are jointly charged with Ms Moses in respect to Charges 3, 4 and 5 on the indictment.
5
Mr Haroldson, you admitted prior convictions, being that at the County Court at Melbourne on 18 August 2008, you were convicted of sexual penetration of a child under 16 years and indecent act with a child under 16 years, for which you were sentenced to a total effective sentence of
15 months’ imprisonment, which was suspended for an operational period of two years. You were directed to comply with reporting obligations under the Sex Offender Registration Act 2004 for life. The sentencing remarks of His Honour Judge Williams were tendered as Exhibit B on the plea.
6 The maximum penalties for the offences on the indictments are: for Charge 1, 25 years’ imprisonment; for Charges 2, 3, 4 and 5, ten years’ imprisonment; and for Charges 6 and 7, five years’ imprisonment.
7 Should you, Ms Moses, be sentenced to a term of imprisonment in respect to Charges 1 and 3, then you will fall to be sentenced as a serious sexual offender in respect to Charges 4 and 5. Mr Haroldson, as you have been convicted of two Schedule 1 offences for which you received terms of imprisonment, you are to be sentenced as a serious sexual offender in respect to Charges 2 to 6, both inclusive. In respect of the provisions of the Sex Offenders Registration Act 2004, upon conviction you will both be subject to the reporting obligations under the Act for life.
8 Tendered as Exhibit A on the plea and read aloud in court was the amended Crown opening on the plea hearing, which sets out the facts that found the charges on the indictment. In summary, Ms Moses, you were a close friend of the mother of the child complainant. You met the complainant’s mother when she was aged 15 years. She was, for a time, your apprentice. In 2004 you went into partnership with the mother of the child complainant and together you operated a hairdressing salon. Your relationship with the mother of the child complainant was close and you regarded her as a sister. See record of interview Question and Answer 104.
9 At the relevant time, the child complainant was three years of age. From the birth of the child complainant, you provided support to her mother and her husband, as part of your ongoing friendship with the complainant’s mother.
10 In November 2013 you, Ms Moses, met your co-offender, Mr Haroldson. You shared a common interest in photography and quickly became extremely close. Over the next six months you found yourselves working together as photographers.
11 Ms Moses, you introduced Mr Haroldson to your friend, the mother of the child complainant at your business premises. You introduced him as your new partner.
12
As your relationship developed, Mr Haroldson confided in you,
Ms Moses, what can be only described as his "perverted sexual fantasies". In part, these fantasies were shared between you by way of telephone “chat” and over 450 pages of chat logs form part of the depositional material relied upon by the Crown. A useful summary of some of the relevant chats is set out in the Notice of Intention to Call Additional Evidence, a statement made by Detective Senior Constable Matthew Young on 16 April 2015 and particularly paragraphs 19 to 33, both inclusive.
13
It was accepted by Ms Dixon of senior counsel, as she then was, on behalf of you, Ms Moses, and by Mr Boas of counsel on your behalf,
Mr Haroldson, that the matters set out in paragraphs 19 through to 33 were an accurate summary of relevant chats. At Chat 6203 and following, you discussed taking and sending photographs of a young child who was present at your hair salon. You, Ms Moses, entered the bathroom with an unidentified child and whilst changing her nappy, took advantage of the situation and photographed the naked child’s vagina and then forwarded it via email to Mr Haroldson. You then discussed how sexually exciting it was. At Chats 6256 to 6343, you both discussed sexual fantasies based around young children and what you would like to do with either a little girl or boy. During this exchange you discussed the earlier episode of changing the young child’s nappy in lewd sexual terms.
14 Later in chats identified between Nos.6799 and 6814, you discussed babysitting a child and taking pictures of that child. You discussed “getting horny” over little boys and girls. Later you discussed in chat format, penetrating the child complainant’s vagina and planning for when the child complainant was to stay at Ms Moses’ house for a sleepover.
15 These chats predate the charges on the indictment and go only to prove the nature of the relationship between you and your co-offender
16
Around March 2014, Mr Haroldson briefly ended your relationship and you, Ms Moses, reacted badly to this. In an attempt to re-ignite your relationship with Mr Haroldson, Ms Moses, you commenced talking to him in starkly sexual terms about young girls. Some of these conversations focussed on the child complainant. Your motive, Ms Moses, was to sexually excite
Mr Haroldson and so have him return to the relationship. Conversations of this kind continued and included the child complainant. The conversations included Mr Haroldson wanting to watch Ms Moses touch the child complainant sexually and have a “naughty threesome” with the child.
17
In order to secure the chat conversations between yourselves, you,
Mr Haroldson, recommended to Ms Moses an iPhone application known as "Kik" that would enable more secure conversations and a more secure means of sending child pornography images to one another. You,
Mr Haroldson, gave technical advice to Ms Moses as to how to download and set up "Kik".
18
Sometime between June and July 2014 when you, Ms Moses, babysat the child complainant, you communicated via chat to Mr Haroldson that the child was with you. Your conversation became increasingly sexual in nature. While changing the child complainant's nappy you, Ms Moses, put a smear of nappy rash cream on your finger and proceeded to rub the cream into the child’s vulva, lightly penetrating her labia, Charge 1. You then used your iPhone camera to take a number of pictures of your actions with the child and sent them to Mr Haroldson, who replied that the images were “yummy”. You, Ms Moses, also took pictures of the child lying naked with her legs apart and her genitals fully exposed, sending those photographs to
Mr Haroldson. (See Charges 3 and 4.)
19 You then photographed the child touching her own vagina and sent the image to Mr Haroldson. The pair of you discussed this behaviour over "Kik" and you, Mr Haroldson, wanted to know if the child had penetrated herself. You, Ms Moses, said that the child did it herself. You were both highly sexually aroused at the prospect of that act occurring. See Charges 3 and 4.
20
You, Mr Haroldson, asked Ms Moses to make a video of what she was doing with the child complainant and send it to you. You gave Ms Moses detailed instructions on how to do this and incited her to film herself penetrating the child. These technical requirements were beyond
Ms Moses’ skill and so no video was sent, Charge 2.
21
In July 2014, the child complainant’s parents went away for the weekend and left the child in your care, Ms Moses. You notified Mr Haroldson in advance of this event and he was aroused by the potential prospect of what this could mean. During the weekend you, Mr Haroldson visited you,
Ms Moses, at your home. You were sitting on a couch, dressed only in a loose T-shirt with your vagina exposed. You had recently bathed the child and the child was clothed only in a towel.
22
Shortly thereafter the child commenced running around and jumping on you, Ms Moses, and generally playing. You, Mr Haroldson, took a video recording of this activity. The towel was removed from the child and she continued to play naked. At one point you, Ms Moses, held the child, exposing her to Mr Haroldson, as well as exposing your own vagina to
Mr Haroldson, who took photographs of this behaviour, Charge 3. Whilst you, Ms Moses cuddled the child, Mr Haroldson digitally penetrated you in the presence of the child. Mr Haroldson took a number of pictures of both you, Ms Moses, and the child’s vaginas in close proximity, with his finger penetrating your vagina, Ms Moses, Charge 5.
23
Sometime between the end of July and the middle of September 2014 you,
Mr Haroldson, forwarded to Ms Moses’ Kik account, a pornographic image of Ms Moses with the child, taken during the events that occurred on the babysitting weekend. The pair of you then participated in explicit sexual chat about sexual activity with the child complainant.
24 It should be noted that Charge 3 in respect of you, Ms Moses, resolved on the basis of a single between-dates charge, encompassing both occasions of producing child pornography. Charge 4 is a between-dates charge and covers the period during which each of you transmitted images of the child complainant to one another.
25 On 11 September 2014 you, Mr Haroldson, by appointment, attended at the Bacchus Marsh Police Station to comply with your obligations under the Sex Offenders Registration Act 2004. Whilst there, police inspected your mobile phone. During this inspection police located in excess of 2,000 pictures in your photo directory. Included amongst these photographs were pictures of the child complainant, arising out of the incidents that I have previously described. On being challenged about these pictures you denied it was you in the photographs, however, tattoos on your arm clearly identified you as being the man in the pictures. You were arrested and interviewed under caution and made admissions in respect of your behaviour.
26
On 12 September, your phone was further analysed and a number of applications, including "Kik", were located on the device. On inspection of the "Kik" account, further pornographic images of the child complainant and chat logs were located. Each of these images had been sent to you,
Mr Haroldson, by Ms Moses.
27 On 12 September 2015, Ms Moses, you were arrested by police and interviewed under caution, during which you made full admissions to the offences with which you stand charged.
28 On 13 September 2015, Mr Haroldson, you were once again interviewed under caution in respect of the images found on your "Kik" account. You made further admissions in respect to the possession of pornographic images of the child complainant and incitement of Ms Moses to video-record her abuse of the child.
29
As part of your obligation under the Sex Offenders Registration Act 2004, you were obliged to, during the course of your annual review, which occurred on
11 September 2014, inform police in respect of all internet accounts, user names and chat sites that you were able to access. You failed to nominate your "Kik" account, nor your user name and password to this facility,
Charges 6 and 7.
30
Sometime after, you, Mr Haroldson, were released from custody on
11 September 2014, the relevant images were deleted from your "Kik" account. It is the prosecution case that either you or someone on your behalf deleted these images remotely from your mobile phone. The effect of this act was to stop the police from fully analysing the contents of your telephone. The deleted memory was unrecoverable, however, a good deal of the material was located on Ms Moses’ phone that had been electronically linked to your phone, Mr Haroldson. It is to be noted that you, Mr Haroldson, are not charged with any offence arising out of this allegation and I will not take that matter into account when sentencing you.
31 Tendered as Exhibit 1 on the plea was a bundle of documents related to you, Ms Moses. The bundle of documents contained the outline of defence submissions, the reports of Mr Patrick Newton, psychologist, dated 30 July 2015 and Dr Barth, dated 2 August 2015, together with references from your family and friends.
32 You are 46 years of age and the oldest of three daughters born to Macedonian immigrant parents. Save for one sibling, your family is close-knit and very supportive of you, see Exhibit 1. You grew up and were educated in the western suburbs of Melbourne. You completed Year 12 and thereafter trained as a hairdresser. You have always worked as a hairdresser, including running your own salon, both alone and in partnership. You have also studied photography and have won awards for your work in this field. You married at age 20 and there is one child of that union, a daughter who is now aged 23. You separated from your husband and were divorced in 1997. Thereafter you had no long-term relationships until 2010, when you entered into a relationship that lasted until 2013. During this relationship your partner commenced to abuse methylamphetamine and became abusive towards you. This caused the relationship to end.
33
In November 2013 you met your co-offender. The relationship was described as being "intense" from the outset and that you agreed together that “nothing was off limits”. However, most of the unusual sexual aspects of your relationship were fantasy and generally the fantasies of your co-offender.
I was told that throughout the relationship you were unaware that he was a registered sex offender.
34 Your relationship with your co-offender broke down in or around 2014 and in order to entice him back into a relationship with you, you pandered to his sexual desires.
35 After your arrest and interview, you made an attempt on your own life and you were admitted to a psychiatric ward for a period of about a week. You are depressed and anxious, but these conditions appear to be a reaction to the predicament in which you find yourself.
36 You were seen and reported on by Mr Newton who gave evidence on your plea. His opinions were based on your reports in a clinical interview and discussions with Dr Barth. The reason for this is that when Mr Newton administered psychological tests to you, you deliberately represented yourself in an unrealistically favourable light, which rendered the test results unreliable.
37 You suffer poor self-esteem and you continue to experience ongoing suicidal ideation. Mr Newton opined:
“The behaviour engaged by Ms Moses clearly points to severe problems in her sexual adjustment. She has not only generated extensive paedophilic fantasy material, as part of her ‘chat’ with Mr Haroldson, but she has also engaged in sex acts with a female child. The degree to which Ms Moses engaged in these acts for her own sexual gratification or derived personal pleasure from them, could not be ascertained. It would appear that Ms Moses’ primary pleasure was derived from excitement and attention provided to her by Mr Haroldson. Regardless of such matters, the behaviour engaged in by Ms Moses, both on-line and off-line, is clearly deeply pathological and problematic.”
38 Mr Newton also opined:
“Her offending encompassed both contact and non-contact offences committed against an unrelated victim to whom she had access because of her position of trust with her family. The nature of Ms Moses’ offending, including its duration and the intensity of her internet chat material, points to significant deviant sexuality and is deeply concerning. Moreover, an analysis of Ms Moses’ offending reveals that it escalated in severity over time, becoming more pathological in content and moving from the world of on-line fantasy to the real world as time progressed.”
39 Mr Newton found the assessment of your risk of re-offending problematic, as offending of this kind by a woman is very rare and accordingly, there is little literature and limited psychological tools available to assist in this exercise. However, doing the best he could, he assessed your risk as moderate. In part, this assessment was affected by your strong commitment to treatment with Dr Barth, which was echoed in Dr Barth’s report of August 2015.
40 In his evidence, Mr Newton said that the next phase in your rehabilitation process was vital and he emphasised the matters set out in paragraph 55 of his report. He said that you would have a difficult time in prison and that the facilities for treatment in prison were not of the same standard as that provided by Dr Barth.
41 It was acknowledged by your counsel that your offending was serious. The child complainant was of very tender years and you breached the trust of her parents, particularly her mother. By reference to Exhibits C and D on the plea, the victim impact statements of the complainant’s parents, the nature of that breach of trust, and the consequence of it on them, has been emotionally, psychologically, medically and financially catastrophic.
42 Your counsel accurately described the act of penetration that founds Charge 1 as being “slight penetration”, but likewise, accurately described the gravity of the offence as arising out of perversion of what otherwise would have been a non-criminal act.
43 Your plea of guilty was an early one and you are entitled to the benefits that flow to you from that plea, being that it is evidence of your remorse and that it facilitates the course of justice. In addition, you offered to make a statement to investigating authorities regarding your co-offender during plea negotiations. I was informed that this offer, although not called upon, was of assistance to the prosecuting authorities.
44 You are person of mature years without conviction. You have worked hard and have achieved much. You have a loving and supporting family. You have pleaded guilty. You have sought to assist the prosecuting authorities. You have sought treatment for your deep-seated psycho-sexual problems. You have also been held up to public ridicule in the media. Time in custody for you will be more burdensome than for a normal person.
45 As against that, your offending is serious. It involved the sexual penetration of the child complainant, the child entrusted into your care by a woman who was a long-standing friend and business partner. You produced pornographic images of the child complainant and published them to your co-offender, as well as committing an indecent act in the presence of the child complainant with your co-offender. All of these offences were committed to maintain your perverse relationship with your co-offender.
46 In all the circumstances, general deterrence, public denunciation and just punishment must be the preeminent sentencing considerations when arriving at an appropriate sentence in your case. You will fall to be sentenced as a serious sexual offender in respect to Charges 4 and 5, and accordingly, protection of the community becomes the principal sentencing purpose in respect to sentences for those charges.
47 Mr Haroldson, you are 28 years of age and you are youngest of three boys born to your mother and father. Your mother died suddenly of an aneurism in 2009 when she was aged 50. Your father, who is aged 50 years of age, now lives in a de facto relationship and resides in the Bacchus Marsh area. You were raised in a loving and caring family. You were educated in Bacchus Marsh and completed your education, passing Year 12. Thereafter you obtained a Certificate II in Music Industry in 2005 and later a Diploma in Film and Screen in 2007.
48 Despite growing up in a loving family, your time at school was difficult. You required a teacher’s aide during your primary school years and you were the subject of bullying throughout your school career. Additionally, when you were about five years of age, you were sexually abused by a 17 year old male friend of your family. This abuse seems to have been limited to mutual fondling.
49 The unexpected death of your mother seems to have affected you adversely and from time to time you have experienced suicidal ideation.
50 In terms of your working life, you have always worked in the field of photography and have, over the years, produced two television programs, one for Foxtel and another for Channel 31.
51 Following your arrest for the instant offending, you again engaged in suicidal thinking and you were seen by the Ballarat Health Services. You consulted your general practitioner, who referred you to a psychiatrist in Ballarat. You were prescribed anti-depressants, but at the time of consulting Mr Jeffrey Cummins, psychologist, on 16 July this year, you were not taking medication. The report of Mr Jeffrey Cummins, dated 5 August 2015, was tendered as Exhibit 1 on your plea. You were reluctant to speak with Mr Cummins about your offending behaviour and explained it by saying it was, "Triggered by my use of ice."
52 It was a recurrent theme in the references tendered on your behalf that you blamed your abuse of methylamphetamine as a causal factor in your offending. However, Mr Cummins opines that he would diagnose you as having “a sexual deviation in the form of paedophilia”. When he informed you of this diagnosis, you accepted that you had a problem and needed to participate in offence-specific treatment.
53 Mr Cummins made a risk assessment of you and assessed you at least in the moderate to high area where the risk options are low, low-moderate, moderate-high and high. Mr Cummins noted that whilst you continue to attend upon a treating psychiatrist, you are presently un-medicated in respect of your mental health.
54 Tendered as part of Exhibit 1 was a bundle of references from friends and members of your family. Each of your referees are supportive of you. They write as to the adverse effects that the publicity concerning the instant offending has had upon you. They each say that you regret your actions and that you are remorseful and ashamed of your conduct.
55
During the course of the plea, your counsel, Mr Boas, submitted that it was your co-offender who initiated the offending and that it was not the case that you required your co-offender to offend or insisted that she do so as a condition for any relationship between you. Further, it was submitted that you had no relationship with the child complainant’s mother and had only met her parents on one or two occasions. To my mind, the last matter is of no consequence. You knew of the relationship between your co-offender and the parents of your child victim. You have pleaded guilty to inciting your
co-offender to make child pornography, as well as producing child pornography with her and transmitting the material between you. Likewise, you were an active participant in Charge 5 and filmed the activities, which are the subject of that charge, and those images were on your telephone when you attended at the police on 11 September 2014.
56 You pleaded guilty at an early stage and are entitled to the benefits that flow to you from your plea, being that it is evidence of your remorse and that it facilitates the course of justice. Each of your referees state that you are ashamed of your conduct and remorseful. However, your offending is grave. Like your co-offender, your actions demonstrate that there are always victims to the offence of producing and possessing child pornography, namely the children, the subject of the images.
57 General deterrence must be an important sentencing consideration in your case. Likewise, specific deterrence is an important consideration because you were subject to the provisions of the Sex Offenders Registration Act 2004 at the time that you committed these offences. This is so because Charge 7 is an offence under that Act and concerns the very program that you and your co-offender installed on your telephones, so that you might have a secure line of communications for your chats and transmission of pornographic images.
58 As you will be sentenced to a term of imprisonment in respect of each of the charges on the indictment to which you have pleaded guilty, you will be sentenced as a serious sexual offender and the protection of the community is the principal sentencing purpose for the sentences imposed on those charges, save charge 7.
59 Would you please both stand up.
60 By these sentences I must impose upon each of you, I must punish you, publicly denounce your conduct, and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, with your personal circumstances and antecedents, and endeavouring to produce sentences which reflect and promote the purposes and principles of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
61 Ms Moses, in respect of Charge 1, I sentence you to two years' imprisonment.
62 In respect of Charge 3, I sentence you to one year's imprisonment.
63 In respect of Charge 4, I sentence you to one year’s imprisonment.
64 In respect of Charge 5, I sentence you to two years' imprisonment.
65 I order that six months of the sentence imposed on Charge 3, together with six months of the sentence imposed upon Charge 4, and 12 months of the sentence imposed upon Charge 5, be served cumulatively upon one another and upon the sentence imposed on Charge 1. This results in a total effective sentence of four years' imprisonment and I set a period of 24 months before you will become eligible for parole.
66 I declare that you have been sentenced as a serious sexual offender in respect of Charges 4 and 5 on the indictment and I direct that this fact be entered in the records of the court.
67 You are subject to the provisions of the Sex Offender Registration Act 2004 for life.
68 I declare that you have spent 21 days by way of pre-sentence detention, not including today.
69
Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but of your plea of guilty, I would have sentenced you to six years' imprisonment, with a
non-parole period of four years.
70 You may be seated.
71 Mr Haroldson, I sentence you as follows:
72 In respect of Charge 2, one year’s imprisonment.
73 In respect of Charge 3, one year’s imprisonment.
74 In respect of Charge 4, one year’s imprisonment.
75 In respect of Charge 5, two and a half years' imprisonment.
76 In respect of Charge 6, one year’s imprisonment.
77 In respect of Charge 7, one year’s imprisonment.
78 I order that six months of the sentences imposed on Charges 2, 3, 4, 6 and 7, be served cumulatively upon one another and upon the sentence imposed upon Charge 5. This results in a total effective sentence of five years' imprisonment and I fix three years' imprisonment as the period that you must serve before you will become eligible for parole.
79 I declare that you have been sentenced as a serious sexual offender in respect of Charges 2, 3, 4, 5 and 6 on this indictment and I direct that that fact be entered in the records of the court.
80 You are subject to the provisions of the Sex Offender Registration Act 2004 for life.
81 I declare that you have spent 21 days by ways of pre-sentence detention, not including today.
82 I declare, pursuant to s.6AAA of the Sentencing Act 1991, that but for your plea of guilty, I would have sentenced you to seven years' imprisonment with a non-parole period of five years.
83 You may be seated.
84 There are a number of ancillary orders. In respect to the disposal order that relates to Ms Moses and a mobile phone, I have made those orders and I hand down three copies.
85
In respect to the disposal order concerning the mobile phone seized from
Mr Haroldson, I have made that order and I hand down three copies.
86 There is an application for a forensic sample in respect of you, Ms Moses. I have granted that application in respect of a mouth scraping. I have done so because of the seriousness of the circumstances of the offending warrant the order and the granting of the order is in the public interest.
87 I must inform you that if at the time of the request for the forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the police may use reasonable force to enable that forensic procedure to be conducted and I hand down three copies of that order.
88 Are there any other matters?
89 MR HAMMILL: No.
90
HIS HONOUR: What is going to take place now, Ms Moses and
Mr Haroldson, is that my associate will bring to you a series of documents regarding your obligations under the Sex Offenders Registration Act. You are to sign these documents as an acknowledgment of receiving them.
91 I want to thank counsel for their assistance in this matter. It was a difficult matter indeed and I want to thank the parents of the child complainant for their composure throughout the proceedings.
92 COUNSEL: As Your Honour pleases.
93 HIS HONOUR: Would you remove the prisoners.
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