Director of Public Prosecutions v Moulden (a pseudonym)
[2019] VCC 386
•28 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON DAVID MOULDEN (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE D. SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 March 2019 |
| DATE OF SENTENCE: | 28 March 2019 |
| CASE MAY BE CITED AS: | DPP v Moulden (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 386 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. McGregor | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms M. Grant | Stary Norton Halphen |
HIS HONOUR:
1Tyson David Moulden[1], on 7 March 2019 you pleaded guilty to: two Charges of sexual assault of a child under the age of 16; one Charge of grooming for sexual conduct with a child under the age of 16; one Charge of sexual penetration of a child under the age of 16; and one Charge of sexual activity in the presence of a child under the age of 16.
[1] Tyson David Moulden is a pseudonym.
2All Charges carry maximum penalties of ten years' imprisonment, save for the sexual penetration Charge, which carries a maximum penalty of 15 years' imprisonment[2].
[2] Sexual assault of a child under the age of 16 contrary to s49D(1) of the Crimes Act, as amended by the Crimes Amendment (Sexual Offences) Act 2016; grooming for sexual conduct with a child under the age of 16 contrary to s49M(1) of the Crimes Act, as amended by the Crimes Amendment (Sexual Offences) Act 2016; sexual penetration of a child under the age of 16 contrary to s49B(1) of the Crimes Act, as amended by the Crimes Amendment (Sexual Offences) Act 2016; and sexual activity in the presence of a child under the age of 16 contrary to s49F(1) of the Crimes Act, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
3The Charge of sexual penetration of a child under the age of 16 (Charge 4 on the indictment) is a standard sentence offence, and as this offending was committed after 1 February 2018, the standard sentencing regime set out in the Sentencing Act 1991 (”the Act”) applies. Pursuant to s.49B(3) of the Crimes Act 1958, the standard sentence for this Charge is six years' imprisonment.
4Sexual activity in the presence of a child under the age of 16 (Charge 5 on the indictment) is a standard sentence offence, and as the offence was committed after 1 February 2018, the standard sentence regime contained in the Act applies. The standard sentence for this Charge, pursuant to s.49F(2A) is four years' imprisonment.
Circumstances of the Offending
5The circumstances of your offending are set out in the prosecution opening on plea dated 5 March 2019, which was tendered on the plea hearing and marked Exhibit A. No issue was taken with that document by your counsel, and accordingly I will treat it as a document containing the agreed facts. I will now outline in brief summary the details of your offending. In order to facilitate confidentiality I will only refer to the victims by their first names.
6At the time of the offending you were aged between 51 and 52 years of age and living with your wife and two of your three children in Hastings. You were employed as a garbage truck driver.
7Your victims are four girls aged between 11 and 13 years at the time of the offending, including your daughter, Amy[3], then aged 13. The other victims are your daughter's friends, Michaela[4], age 12 to 13, Kate[5], age 12, and Lily[6], age 11 to 12. You came to know Michaela, Kate and Lily through their friendships with your daughter.
[3]Amy is a pseudonym.
[4]Michaela is a pseudonym.
[5]Kate is a pseudonym.
[6]Lily is a pseudonym.
Your Offending Against Michaela
Turning to your offending against Michaela, Charge 1 on the indictment, Michaela was a friend of your daughter, Amy, having attended the same kindergarten and primary school together. Your families became friends, and Michaela would refer to you as her “second dad”. Michaela and Amy normally caught up during school holidays, and Michaela would often go to your house. You offended against Michaela on three separate occasions and accordingly, Charge 1 (which relates to your offending against Michaela) is a representative Charge. In late 2017 Michaela visited your house and she and Amy were in the theatre room. You placed your hand under her top and rubbed her breasts above her bra. Michaela did not know what to do, and felt that if she told somebody, no one would believe her.
8The second occasion also took place at your house, during a sleepover involving Michaela and Amy. On that occasion you placed your hand down Michaela's top, and again rubbed her breasts over her bra. On the third and final occasion, in March 2018, Michaela and Amy were watching a movie in the theatre room during another sleepover. You sat on the couch next to Michaela, with your daughter, Amy, nearby. You put your hand down Michaela's top and touched her breasts, rubbing where her bra was and slightly underneath her bra line for a minute or so before stopping. This was longer than your touching of Michaela on the first two occasions. During this offending Michaela felt awkward and uncomfortable.
9Michaela disclosed your offending to her mother when she was contacted by the police informant on 12 June 2018, some three months later.
Your Offending Against Kate (Charge 2)
10Your offending against Kate in Charge 2 on the indictment. Kate became friends with your daughter, Amy, from living in the same street as your family before Kate's family moved locations approximately two years prior to the offending.
11One day in March 2018 whilst working on your garbage truck run you found yourself in Kate's new street and saw her in the front room of her house. You signalled for her to come outside, at which time you put your hands out to give her a hug and, "pulled her in", for about 20 seconds or so, which made Kate feel a bit scared. You struck up a conversation with her before returning to your truck.
12In the ensuing days, you sent Kate a series of Facebook messages utilising the secret conversation function, rendering messages viewable solely on the device initially used to read them. In your first message to Kate, you said, "It was great to give you a hug again you're looking really good you're growing."
13You later asked if she had a boyfriend, and when Kate indicated that she did, you messaged, "okay if he hurts you I will kick his butt let's face it youre a good looking young lady you have boobs and every thing now he hurts you and he will see my foot up he’s bum. Lol, [with a laughing emoji]”.
That message was followed by another message urging, "Don't tell your mum I'm saying this, she will kill us, our secret I have to look out for you."
14The following day you messaged Kate, saying "morning, sexy girl, man was you still awake at two in the morning." There were other messages sent by you to Kate, of a similar nature during this period.
15Kate recalls that the messaging took place over about a four day period. She said that the messages received from you kind of scared her, and when she received the message referring to her as a sexy girl, she showed her mother the exchange.
16On 19 April 2018, a few days after being shown the messages, Kate's mother sent you a series of messages over Facebook asking you to explain yourself. In your reply you said: "what I said was stupid and wrong for a person of my age” … and “I would never do anything to harm your kid". You indicated to Kate's mother a preparedness to meet and discuss the matter and that what you had done had taught you a big lesson. You gave Kate's mother your mobile number to give to the police. You also requested another driver to collect the bins in Kate's street instead of yourself and when asked by your supervisor why you had made this request, you said: "had some trouble with a lady in there… because I texted her 12 year old daughter a hello."
Your Offending Against Lily and Your Daughter, Amy (Charges 3, 4 and 5 – Representative Charges)
17Your offending against Lily and your daughter, Amy, covered by Charges 3, 4 and 5, all of which are represented in Charges. Lily had been friends with your daughter, Amy, since they were about three years old. By the middle of 2018 Lily had stayed over at your house about five or six times.
18On one of those occasions while Lily and Amy were in the theatre room, you touched Lily on the breasts, both under and over her clothing. That is the first of three occasions covered by Charge 3, sexual assault of a child under the age of 16.
19Lily again visited your house for a sleepover on the evening of 9 June 2018. Lily and Amy sat in Amy's room and watched movies until around
1 am, at which point you came in to say goodnight to the girls. You lay on the edge of the bed that Amy and Lily were sharing, with Amy positioned closest to you and Lily sleeping on Amy's other side against the wall. You placed your arm around your daughter, and then after about ten minutes leant over your daughter and started to touch Lily. She moved closer to the wall in an attempt to get away from you, but in response you leaned over further. You first rubbed Lily's chest before, according to Lily, "picking at” her chest before rubbing on her side. You then touched her lips and face, rubbed your hand against her leg and buttocks, this is the second of the three occasions captured by Charge 3, sexual assault of a child under the age of 16, before putting your hand under Lily's pants and underwear, separating her labia majora and “dragging” your fingers up and down inside numerous times, each time getting harder and hurting Lily. That is the first of two occasions covered by Charge 4, sexual penetration of a child under the age of 16. Lily pretended to be asleep because she "didn't know what to do to" and she wanted you to stop but did not know how to get you to do so.20You then left the room but returned a short time later. Lily tried to move, and placed a pillow behind her in an effort to stop you, but according to Lily you "still found a way to do it". You laid back down where you had been previously, again placed your arm over Amy, and repeated your earlier conduct in relation to Lily. You commenced by “picking” at her chest, that is the third of three occasions covered by Charge 3, sexual assault of a child under the age of 16, before placing your hand under pants and underwear, and using your fingers to again open her labia majora and drag your fingers up and down inside for approximately one or two minutes. That is the second of two occasions captured by Charge 4, sexual penetration of a child under the age of 16.
21You then stopped what you were doing and your daughter, Amy, woke up a short time later. After you had left the room, Lily started to cry and your daughter, Amy, asked her what was wrong. Lily pretended that she had had a blocked nose.
On each of the occasions that you offended against Lily in the early hours of 10 June 2018, your daughter, Amy, was present beside her in the bed. Your offending in these circumstances forms the basis of Charge 5 on the indictment, namely sexual activity in the presence of a child under the age of 16. This is also a representative Charge, representing the two occasions on that evening when you engaged in this criminal activity in the presence of your daughter. I note in relation to this matter that there is no evidence that your daughter was awake or aware during the sexual offending against Lily. When spoken to by police, Amy essentially said that she did not see your hand come into contact with Lily while you were there.
22When Lily arrived home later that morning, her mother noticed that she was quiet and asked her what was wrong. Lily eventually disclosed your offending to her.
Investigation, Arrest and Interview
23You were arrested later that night, following Lily's disclosures, and you were taken to the Police Station for interview. You were forthcoming with police in relation to the allegations of sexual offending against Lily, indicating amongst other things that you had, "rubbed her on the breast and stomach and down below" (Answer 14), that you had toucher her "just a little bit", on the vagina using the tip of your finger (Answers 60 to 68) and that your fingers opened the lips of her vagina “a little bit” (Answers 141 to 143), and that you had also touched her breasts, buttock, arms, back, face and lips (Answers 150 to 164). You also admitted that you had “probably” left the bedroom before returning to touch Lily again (Answers 196 to 205). Significantly, you also admitted to having touched Lily on another occasion earlier in the year, causing you to become sexually aroused (Answers 25 to 29, 54 and 47 to 51). At this point, Lily had not disclosed this first occasion of sexual touching. In that interview, you also admitted to having touched Michaela on the breasts during an earlier visit to your house (Answers 90 to 100) and that you had gotten aroused by it (Answer 116). You denied being affected by drugs or alcohol at the time of the offending against Lily on 10 June 2018 and told the police that you needed help (Answers 137 to 140, 87, 236 to 240).
24You were not interviewed at that time in relation to Kate's allegations, those allegations not having then been disclosed to police.
Victim Impact Statements
I turn now to the Victim Impact Statements. I receive six Victim Impact Statements – from: Michaela; Lily; your daughter, Amy; Michaela's mother, Emma[7]; Lily's mother, Holly[8]; and Amy's mother and your ex-partner, Abigail[9]. I note that those individuals, that is the mothers of the victims, are currently in Court. Whilst understandably your victims were not present in Court for the plea hearing, their mothers, as I've indicated, were and are. Having heard the Victim Impact Statements read in Court during the plea hearing, I have also taken the time to read these documents carefully. I proceed now to outline just some of the impacts of your offending on your victims and their families.
Michaela described feeling very confused as a result of your offending against her, and that she “never expected that someone I knew and trusted would betray my trust and do such a thing". Michaela described the personal difficulties associated with the decision she made to keep, ""it", that is the offending, "to myself". She said, "Due to my decision to not tell anybody, I felt that I couldn't act differently around Tyson otherwise someone might suspect something was going on. This made me feel like I was playing charades with him, which was extremely difficult. We had a close relationship. I considered him as part of my family". As a result of your offending against her, Michaela indicates that her life has changed and that she now has trouble trusting others, particularly males. Michaela concluded that, "Now that I have discovered that other people have been affected by Tyson’s actions, I wish I had not carried the burden alone, and spoken up sooner."
[7] Emma is a pseudonym.
[8] Holly is a pseudonym.
[9] Abigail is a pseudonym.
25Lily indicated in her Victim Impact Statement that, "I felt like screaming and saying stop but I let it continue. It felt like when it was happening I thought it would never end". She referred to not feeling safe in the aftermath of your offending, and the emotional scars as a result of the incident caused her to keep getting lower stomach cramps which made her feel sick, and kept her from sleeping. Lily indicated that, "Since the incident, I have had to move away from my family, change schools, meet new friends, create a new life. It's taken months and months to start feeling myself again and when I do I always get a reminder of what happened". Lily also referred to a loss of trust and that, "It always makes me sad to think that cause he wanted to be happy he had to hurt me and others".
26It is clear from your daughter's Victim Impact Statement that she feels considerable anger towards you as a result of your offending against her and her friends. Amy indicates, "What he did made me so angry. I was angry because he hurt me emotionally and for that I hate him". She indicates that, "I struggled when I would see other families, seeing them happy was hard to watch. I feel like I no longer have a father figure like that, which hurts me deeply". Amy concludes as follows, "I don't think this is something I will ever forgive him for, I will feel this hurt for the rest of my life. He may not realise it but he has lost me forever."
27Michaela's mother, Emma, in her Victim Impact Statement refers to the trust which you abused through your offending. Emma indicates, "Still to this day, this awful situation consumes me, my emotions are often like a roller coaster. This is something that I now, unfortunately have to deal with and it will always be paramount in my mind. I feel Tyson’s actions are unforgiveable given the emotional upheaval he has caused my daughter, myself, and my family".
28According to Lily's mother, Holly, "This crime has torn my family apart as my daughter was wanting to take her own life due to this horrific selfish person, so we made the decision and the only decision we could make, which was for her to move interstate with family, which is a decision that was right for my daughter as she could no longer bear to be around this town, but this has turned my world upside down, not only has this man taken my daughter's innocence and childhood but he has taken her away from me and left a hole in my family that means living every day without my baby girl being around us".
29Your ex-partner, Abigail, also the mother clearly of Amy, described the impact of your offending on her in her Victim Impact Statement. Abigail indicated, "My whole world was turned upside down on the night Tyson was arrested. I was confused, scared and completely blindsided when told of the crimes he had committed".
30Abigail indicated, "Tyson was the primary wage earner in the family, so the financial impact is extensive. I had been a stay at home mum for most of our marriage and I am currently home schooling my youngest daughter Amy. We had never owned a home, and as a consequence of the crime, the loss of future earnings meant as a family we were faced with homelessness. The majority of our possessions I had to sell, as I had no money to pay the bills and now I am faced with an unknown future. We could no longer stay at our previous home, not only for financial reasons but also knowing that some of Tyson’s crimes had been perpetrated there. The cost of relocating was substantial, I had to seek emergency financial assistance from local services and also my family just to make ends meet".
31Abigail concluded as follows: "I question everything now, Tyson’s insufferable actions have caused me to distrust people, especially men. He took away innocence, now I see predators at every turn. I am suspicious of total strangers."
32The Victim Impact Statements bear testament to the strength and resilience of the victims of your criminal conduct, and this families. The statements also bear witness to the devastating impacts of your criminality on not only these young girls, but their extended families. I have taken them into consideration in sentencing you.
Procedure History
33You were arrested and interviewed on 10 June 2018, just hours after the offending against your daughter and Lily. You were then Charged and remanded in custody, and have been on remand since your arrest. You have now been in custody for 291 days not including today.
34Save for Charge 2 on the indictment, the grooming Charge, I was informed that all Charges formally resolved to a plea of guilty on 21 September 2018. A submissions only committal hearing took place in relation to the grooming Charge on 13 November 2018, at the conclusion of which pleas of guilty were confirmed in relation to the other Charges.
35The matter resolved completely on 26 November 2018 at a directions hearing in this Court, where you entered a plea of guilty to the grooming Charge and confirmed your pleas of guilty in relation to the other Charges on the indictment. The matter was then set down for a plea hearing on 7 March 2019.
36The prosecution in this case conceded that your plea in relation to Charges 1, 3, 4 and 5 was indicated at the earliest possible opportunity. That is consistent with your sentiments in your interview with police conducted on 10 June 2018. In that interview, you were forthcoming in relation to the sexual offending committed just hours earlier. You also volunteered an earlier incident involving Lily, which was not disclosed by her in her VARE interview. That admission formed one aspect of the representative Charge, being Charge 3 on the indictment. I also note that Michaela was identified as a potential complainant in light of your admissions in your police interview. Your plea of guilty at the earliest opportunity in relation to those Charges warrants a significant sentencing discount.
37The position in relation to the grooming Charge, Charge 2 on the indictment, is somewhat less straightforward. When you were interviewed by police, those allegations had not been disclosed, and accordingly you were not interviewed regarding those matters. I was informed that when those allegations came to light, you instructed those representing you to take that aspect to a contested committal hearing, in relation to whether or not the conduct amounted to grooming, rather than a dispute as to whether the actual conduct took place. Whilst it could not be said that your plea of guilty in relation to that Charge is at the earlies possible opportunity, in the circumstances of your case, I am satisfied that it is nevertheless an early plea, and the fact that you proceeded to a contested committal hearing does not dilute the fact that your plea of guilty in relation to the grooming Charge is reflective of acceptance of wrongdoing, and genuine remorse. I will return to the issue of remorse later in my reasons for sentence.
Personal Circumstances
38Turning now to your personal circumstances, for the purposes of gaining an understanding as to your background and circumstances, I have relied upon your counsel's outline of your background, together with the contents of a psychological report written by Mr Jeffery Cummins dated 12 February 2019, tendered on your plea hearing and marked Exhibit 1. You are currently 52 years of age. Your parents separated when you were approximately nine or 10 years of age, after which time you were raised by your mother. Your father, sadly, took his own life shortly after the separation. Your mother, now aged 80, is still alive, and knows generally of your legal situation.
39You have three sisters and two brothers and you have indicated that you are reasonably close to all of your siblings but closest to your 50 year old brother, Brian,[10] and his wife, who live in South Morang. You were educated to Year 12 at Preston Technical School, and since leaving school you have had a variety of jobs. They have included positions in the area of production line worker, hydraulics engineer and garbage removal. At the time of your arrest on
10 June 2018 you were working as a garbage truck driver.[10] Brian is a pseudonym.
40As indicated in your criminal record, you have a limited criminal history from 1984 and 1994, for dishonesty matters and in 1994 an assault for which you received a financial penalty. I was informed that this matter did not involve under age children or any suggestion of sexual impropriety. Accordingly, I have formed the view that your limited criminal history is not of relevance in any meaningful sense to the exercise of my sentencing discretion. I note in that regard that your second and final appearance in Court was almost 25 years ago.
41You have only had one long term intimate relationship in your life, namely with your now estranged wife, Abigail. You were married for some 22 years before your relationship ended on the date of your arrest. You informed Mr Cummins of a general deterioration in your relationship for the six or seven years prior to your arrest on 10 June 2018. In addition to your daughter, Amy, you also have another daughter aged 19 and a son age 21. Since your arrest you have perhaps unsurprisingly been completely cut off from your family.
42You informed Mr Cummins that shortly prior to your arrest in June 2018 you were feeling so depressed in relation to the state of your marriage that you contemplated suicide but stopped such thoughts on the basis that any actions would adversely impact on your children. You also informed Mr Cummins that after your arrest you also had entertained suicidal thoughts but stopped hose because of your father's history, and again your concerns in relation to the impact on your children. Save for those difficulties, I was informed that you have not encountered any significant mental health problems, have never been prescribed an antidepressant, anti-anxiety or anti-psychotic medication, and have never been hospitalised in a psychiatric hospital or ward.
43Psychologist, Mr Jeffrey Cummins, assessed you on 7 February 2019. In relation to your offending, you told Mr Cummins, "I am guilty, I deserve to be told off and punished. I need help" (paragraph 30).
44Mr Cummins conducted a risk assessment using the widely accepted tools for sexual offending. Mr Cummins indicated that there was no evidence of any denial of sexual offending or of attitudes supporting or condoning sexual offending (paragraph 35), but that at the time of the offending you: "… had problems with self-awareness and problems with self-distorted thinking, in that at interview he stated at the time of offending he thought at least two of the victims were ‘cooperating’ with his offending. At the time of the offending he was experiencing problems in his marriage" (paragraph 35).
45Mr Cummins further opined, at paragraph 36, "… his offending attracts the diagnosis of paedophilia and hebephiliac (that is, sexual attraction to persons who are post-pubescent but under the legal age). He was not assessed as having a psychopathic personality disorder. In my opinion, at the time of the offending he was most probably suffering from a major depressive disorder which was of moderate severity and recurrent in type, which was reflective of the deterioration of his marriage” (paragraph 36).
46Mr Cummins concludes, at paragraph 39: "On the basis of all of the information currently available concerning Mr Moulden, it is my opinion his risk of reoffending is moderate to high, although at interview he presented as being very motivated to receive offence specific treatment which, if he actively participates in this treatment, may see his risk level reduce to low/moderate" (paragraph 39).
47According to Mr Cummins, at paragraph 45: "At interview he apologised regarding his offending and expressed regret and remorse" (paragraph 45).
48Finally, Mr Cummins opines, at paragraph 50: "In my opinion Mr Moulden is in urgent need of receiving offence specific treatment and at interview he presented as being very motivated to engage in offence specific treatment. He did not present as being suicidal. In my opinion his mental health will most probably deteriorate when the comprehensive reality of his situation is reinforced through him being sentenced. In my opinion he should be trialled on an antidepressant" (paragraph 50).
49I accept the submission of your counsel that since being remanded in custody, you have not sat idle. In that regard, I have considered the bundle of certificates and associated documents in relation to your progress in custody, tendered at your plea hearing and marked Exhibit 2. I note that you have produced a number of clean urine screens in relation to testing for drug use. I also note that you have undertaken a number of courses whilst in custody, including the “Coping Inside Program” and various courses through Kangan TAFE such as Workplace Safety, Food Safety, Hygienic Practices for Food Safety, First Aid and assessment for a forklift licence. These are all matters which go to your credit, and speak of your favourable prospects of rehabilitation.
Sentencing Factors
50I turn now to sentencing factors. Section 5(2) of the Sentencing Act hereafter referred to as “the Act”, sets out a series of factors to which a Court must have regard in sentence an offender. The legislation does not state that any factor has dominance over another and, indeed, it is well understood that the weight and emphasis given to any one factor by a Court will vary according to the facts and circumstances of each case.
51On 1 February 2018, Part 3 of the Sentencing Amendments (Sentence Standards) Act 2017, hereafter referred to as “the Amendment Act”, introduced the standard sentencing scheme into the Act. Sections 5A and 5B of the Act set out the standard sentence provisions. As you committed the offending covered by Charges 4 and 5 on 10 June 2018, the scheme applies to the sentence I must pass in relation to those Charges. Whilst pursuant to s.5B(2)(a) of the Act, the Court is to take the standard sentence into account as one of the factors relevant to sentencing, pursuant to s.5B(3)(b) this, "is not intended to affect the approach to sentencing known as instinctive synthesis." Accordingly, the common law requirement that a sentence be determined by a process of instinctive synthesis, considering the full range of possible sentencing factors, remains the correct approach where the standard sentencing scheme applies[11].
[11]See R v Shane Michael Robertson [2019] VSC 145, [47].
52Nothing in the legislation suggests that the standard sentence assumes a dominant role in considering the sentence to be imposed. Rather, it is simply one of the relevant sentencing factors to which the Court must have regard.[12]
[12]Ibid, [48].
Maximum Penalty
53Pursuant to s.5(2)(a) of the Act, I must have regard to the maximum penalty for the relevant offence. In accordance with the maximum penalties that I have previously described, I have had regard to those penalties in fixing sentence in your case.
Standard Sentence
54Pursuant to s.5(2)(a)(b) of the Sentencing Act, a Court must have regard to the standard sentence, if any, for the relevant offence. This requirement, as I have indicated, applies only to Charges 4 and 5 on the indictment.
55Pursuant to s.5A(1) of the Act: “If the Act that creates an offence or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then - (a) the offence is a standard sentence offence; and (b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”
56As earlier indicated, s.49B(3) of the Crimes Act provides the standard sentence for the offence of sexual penetration of a child under the age of 16, Charge 4 on the indictment, is six years' imprisonment. Pursuant to s.49F(2A) of the Crimes Act, the standard sentence for the offence of sexual activity in the presence of a child under the age of 16, Charge 5 on the indictment, is four years' imprisonment.
57According to the explanatory memorandum to the Amendment Act, it is clear that the standard sentence for an offence should be viewed as a “legislative guidepost” as to the middle range of objective seriousness of that offence.[13] As the explanatory memorandum to the Amendment Act states: "The standard sentence is not the starting point for sentencing, nor does it require two stage sentencing. Rather, the standard sentence is intended to provide the Courts with a legislative guidepost of objective offence seriousness but is compatible with the instinctive synthesis approach to sentencing which has been affirmed as part of the common law in Victoria".
[13]Ibid [53].
58Section 5A(1)(b) and 5A(3) of the Act can be seen to be directed at giving meaningful content to this legislative guidepost.[14]
[14]R v Brown [2018] VSC 742, [79] & [84], and Shane Michael Robertson [2019] VSC 145, [56].
59As stated in s.5A(1)(b) the standard sentence is the sentence for an offence in the “middle of the range of seriousness”, taking into account “only the objective factors affecting the relative seriousness” of that offence. Section 5A(3) of the Act provides further, "For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined - (a) without reference to matters personal to a particular offender or class of offenders; and (b) wholly by reference to the nature of the offending".
60As stated by Champion J in the recent decision of Robertson[15] in the Supreme Court: “In light of the clearly established language of s.5A(3) of the Act, when assessing the objective factors affecting the relative seriousness of the offence, a sentencing Court is prevented from taking into account matters personal to the offender, and must determine it wholly by reference to the nature of the offending.”
[15]R v Shane Michael Robertson [2019] VSC 145, [56].
61His Honour in that decision also stated as follows: "Finally, it has been made clear that the standard sentence scheme does not require or permit the Court to engage in a ‘two-step approach’, involving an initial ‘classification’ of the seriousness of the offending at issue."[16]
[16]Ibid [60].
The Seriousness of Your Offending
62Pursuant to s.5(2)(c) of the Act, the Court must have regard to the nature and gravity of the offending.
63Some time was devoted to the submissions in relation to the seriousness of your offending at the plea hearing before me. In my view, your offending overall represents serious sexual offending. Your criminal conduct traversed the period from October 2017 to June 2018. It involved sexual offending against four young girls including your own daughter. Perhaps with the exception of Charge 2, your offending involved a significant breach of trust, a matter which I regard as of considerable significance in the sentencing exercise. It goes without saying that you were in a position of trust in relation to your daughter, Amy, yet engaged in penetrative conduct in her presence. Your access to Michaela, Kate and Lily only came about through their friendship with your daughter. In relation to Charges 1, 3, 4 and 5 you were clearly in a position of trust in relation to your victims, a duty which you flagrantly breached. In my view, the inherent gravity of your sexual offending against these children is self-evident. Your behaviour in relation to your victims was deplorable and should be condemned. I now turn to specific findings in relation to offending against each of your victims.
Michaela – Charge 1
64In relation to Michaela, Charge 1, the gravity of your offending in relation to Michaela is highlighted by her view of you as her "second Dad". In sexually touching Michaela in the manner alleged, you have abused your position of trust in relation to her. The gravity of your conduct is also highlighted by the fact that you sexually assaulted her on three separate occasions.
Kate – Charge 2
65In relation to Kate, Charge 2, the prosecution have fairly conceded in relation to your sexual offending as it relates to Kate as being at the lower end of seriousness in relation to conduct captured by the crime of grooming. I agree with that description in this case. The grooming behaviour took place on what appears to be a limited number of days and some of the circumstances often seen in relation to the crime of grooming are absent in your case. The messages sent to Kate whilst completely inappropriate, gratuitous and highly offensive, having a sexualised tone, are not as explicit, nor do they have accompanying graphics or images that the Court sometimes sees in grooming cases. However, referring to the physical anatomy of a 12 year old girl, referring to her as a sexy girl, asking her not to tell her mother and utilising a secretive function on Facebook to facilitate your offending is self-evidently serious, concerning and worthy of condemnation by the Court on behalf of the community.
Lily – Charge 3
66Your offending against Lily took place in the context of her attending at your house for a sleepover. She was aged 11 and 12 at the time of the offending. You were in a considerable position of trust in relation to Lily, and your sexual offending against her represents a serious breach of that trust. Charge 3 is representative of three occasions of sexual offending, the first being a separate evening to the latter two occasions. Your conduct in relation to the second and third occasions on 10 June 2018 represents an escalation of this type of offending, in that your sexual assault of Lily on these latter occasions extended to rubbing of her chest, rubbing on her side, touching her lips and face, rubbing her legs and buttocks before putting your hand down her underwear. The third occasion upon which you sexually assaulted Lily in the context of Charge 3 took place after you had left the room and returned a short time later. You again sexually assaulted Lily notwithstanding that she had tried to move away and placed a pillow behind her in an effort to stop you but you “still found a way to do it.” Your conduct on that third occasion, in my view showed a degree of determination on your part, notwithstanding Lily's position.
Lily – Charge 4
67Conduct in relation to Lily, Charge 4. The gravity of your conduct in sexually penetrating the vagina of Lily with your fingers is accentuated by the fact that this conduct occurred on two occasions on 10 June 2018, the, second occasion after you had left and returned to the bedroom a short time later. Again, your conduct in engaging in penetrative behaviour with Lily after having left the room for a period of time, and returning to find her having placed a pillow behind her and moving away from you, highlights the gravity of this second occasion of sexual penetration, in circumstances which reveal determined behaviour on your part. The conduct encapsulated by Charge 4 took place whilst your daughter was in the room and nearby. Whilst I have been careful not to doubly punish you in relation to that aspect of your offending, the presence of your daughter provides context to the circumstances in which you engaged in the sexual penetration of Lily. In all of the circumstances, it is my view that this offending, covered by Charge 4, is below but somewhat approaching the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that particular offence.
Amy – Charge 5
68In relation to Amy, Charge 5, as earlier indicated, your offending in relation to Amy represents a most significant breach of trust. The fact that you chose to engage in penetrative behaviour of one of Amy's friends in her presence, in my view, accentuates the gravity of your conduct. The gravity of your conduct is further highlighted by virtue of the fact that you engaged in sexual activity in the presence of Amy on two occasions on 10 June 2018, separated in time when you left the bedroom and then returned. Thankfully, there is no evidence before me that your daughter, Amy, was awake or aware of the sexual offending which was taking place in her presence, though presumably she will now live with the fact that it occurred in those circumstances. In all of the circumstances, particularly given the absence of any awareness on the part of your daughter at the relevant time, I am of the view that your offending in relation to this Charge is below the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that particular offence. Given the nature of the sexual activity in which you engaged in your daughter's presence, namely penetrative conduct, it is my view that your conduct in relation to your daughter is perhaps approaching the middle of the range of seriousness.
69In written submissions on the issue of the objective seriousness of your offending insofar as it relates to Charges 4 and 5 (the standard sentence offending) dated 7 March 2019, Ms Hamill who then appeared for the prosecution set out a number of factors which in her submission warranted a finding that your offending in relation to Charges 4 and 5 was in the middle of the range of objective seriousness. For the sake of clarity, I accept submissions (a), (b) and (d). In relation to paragraph (c) (“the victim's vulnerability was increased, because the offending occurred at a time when the only other adult in the house had absented herself”), in my view, this aspect is incorporated into the fact that your offending represents a significant breach of trust rather than itself constituting a separate factor. Pursuant to that breach of trust, you were able to obtain access to your victims in a private setting, which facilitated your offending. In relation to paragraph (e) of the prosecutor's submissions, that is, (“the great disparity in age between the offender and the victims - the offender is 39 years older than Lily and 40 years older than Amy”), there was some debate in relation to this submission at the plea hearing. I agree with the submission to the extent that it could be said that your offending is wholly distinct from a scenario where the accused and the victim are not separated in age to any great degree, for example, in a “boyfriend/girlfriend scenario”. This is clearly not one of those cases. Clearly, he was significantly older than your victims, and in no way could it be said that you were a peer of theirs. Acknowledging the disparity in ages, in my view, the extent of that disparity (40 years as opposed to, for example, 30 years or even 20 years) is of little moment.
Your Culpability and Degree of Responsibility
70Pursuant to s.5(2)(d) of the Act the Court must have regard to an offender's culpability and degree of responsibility for the offence.
71In my view, your level of culpability for the offending is high. Whilst according to Mr Cummins at the time of the offending you were most probably in the grips of a major depressive disorder which was undiagnosed and hence untreated, due to your deteriorating marriage, this in no way ameliorates your culpability for this offending. You were, at the time of the offending, suffering from symptoms of both paedophilia and hebephilia, according to Mr Cummins, and I note that you informed
Mr Cummins that you had become sexually aroused in the company of the underage females who were the victims of your offending behaviour.[17] No submission was made on your behalf to enliven the Verdins principles, which may otherwise reduce your moral culpability for the offending.[17] Psychological Report from Mr. Cummins dated 12 February 2019, [45].
Guilty Plea
72I turn now to your guilty plea. As earlier indicated, I am satisfied that your early pleas of guilty in relation to the Charges mitigates any sentence to be imposed. It has utilitarian value and has facilitated the course of justice. As earlier indicated, I do not view the fact that you proceeded to a contested submissions only committal hearing in relation to Charge 2 to dilute in any substantial way the discount applicable for your pleas of guilty. The authorities are clear that, particularly in relation to cases involving sexual offences, a plea of guilty which obviates the need for victims to give evidence and relive the trauma is worthy of a significant sentencing discount. Your pleas of guilty also need to be viewed in light of your admissions when interviewed by police. As indicated by the prosecution, Michaela was identified as a potential complainant in light of your admissions in our interview, and the offending against Lily that took place prior to 10 June 2018 (represented by Charge 3) arose also as a consequence of your admissions in your police interview, that matter not having been disclosed by Lily in her VARE interview.
73In my view, a sentencing discount consistent with the principle in The Queen v Doran [2005] VSCA 271 is applicable. In Doran's case Buchanan JA (with whom Eames and Nettle JAA agreed), said:
"… the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view the consequences of the appellant’s admissions are that they reduce the need for a sentence to personally deter the appellant’s, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it is important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions."[18]
[18]R v Doran [2005] VSCA 271, [14].
74In the decision of Connor Sharman (a pseudonym) v The Queen [2017] VSCA 241 at 36, the Court of Appeal indicated that:
"The public interest that attaches to a plea of guilty which rests upon a confession, and the right to considerable leniency in such circumstances, is not confined to cases where the crime is unknown to investigators before the confession is made or the complainant does not have the capacity to give admissible evidence."[19]
[19] Connor Sharman (a pseudonym) v R [2017] VSCA 241 paragraph 36
75The Court further stated:
"The discount for a confession will generally be more substantial where it is a confession to an unknown crime rather than to a known offence but less so where the confession only provides more specific detail of existing allegations. That said, when proof of guilt depends entirely upon the offender's confession, leniency is usually required. The amount of any discount will be a matter of degree and fact depending on the circumstances of the case."[20]
[20] Ibid, [42].
76The prosecution in this case submitted that any discount pursuant to Doran's case should be diminished by virtue of the fact that your admissions in your police interview were not complete admissions. By way of example in relation to the allegations regarding Michaela, whilst you did mention her in your interview, it was submitted that you did not divulge the entirety of your offending in that regard. According to the prosecution, therefore, the applicability of the Doran discount was not straightforward. Ms Kaddeche on your behalf submitted that the fact that your admissions were ultimately part of a representative Charge did not diminish the discount applicable pursuant to Doran's case. I agree with that submission.
77Your admissions in your police interview were substantial, extending beyond the disclosures that had currently been made as at that point in time. Your admissions are consistent in my view with the sentiments expressed to your work supervisor in relation to the grooming Charge regarding Kate. I have formed the view that you have been forthcoming in relation to taking responsibility for your offending in all of the circumstances. Your conduct in this regard reflects genuine remorse, increases the prospects of your rehabilitation and reduces the need for any sentence to deter you from further offending. A significant sentencing discount is therefore applicable.
78I also accept that your plea of guilty in these circumstances is reflective of genuine remorse. As the authorities make clear, a plea of guilty which evidences genuine remorse is further grounds for a significant sentencing discount. According to Mr Cummins in his report, you spoke in a manner indicating that you were taking full responsibility for your offending behaviour (paragraph 27), and at paragraph 45 Mr Cummins said as follows: "At interview he apologised regarding his offending and expressed regret and remorse".
79It is appropriate in my view, therefore, that you receive the full benefit for your early plea, reflecting as it does your acceptance of wrongdoing, your cooperation with authorities in terms of your admissions, and genuine remorse.
Current Sentencing Practices
80I turn now to current sentencing practices. Pursuant to s.5(2)(b) of the Act the Court must have regard to current sentencing practices when sentencing an offender.
81A consideration of current sentencing practices is not straightforward in this particular case. In relation to Charges 1 and 3, I have considered the application of current sentencing practices in relation to the Charge of sexual assault of a child under the age of 16, contrary to s.49D(1) of the Crimes Act. As earlier indicated, in my view the grooming Charge,
Charge 2, is reflective of offending at the lower end of seriousness in this particular case. The authorities referred to me in the course of the plea hearing, namely Tutingi v The Queen [2018] VSCA 250, and Waldron v The Queen [2016] VSCA 260, involve grooming conduct which was more serious than the conduct involved in your case. Nevertheless, I have considered current sentencing practices as they apply to the Charge of grooming for sexual conduct with a child under the age of 16, contrary to s49M(1) of the Crimes Act.82Charges 4 and 5, as earlier indicated, are standard sentence offences in your case. Pursuant to s.5B(2)(b) of the Act, when considering a standard sentence offence, a Court may only consider previous sentences where the relevant offence was subject to the standard sentence scheme. The plain language of s.5B(2)(b) of the Act expresses Parliament's clear intention to alter the scope of s.5(2)(b) of the Act when sentencing for a standard sentence offence. The explanatory memorandum to the amending Act further indicates:
"… Courts sentencing offenders for standard sentence offences should start from a ‘clean slate’ with respect to current sentencing practices.”[21]
[21]R v Shane Michael Robertson [2019] VSC 145, [78].
83I am unaware of any other case which has applied the standard sentence scheme for the offences of sexual penetration of a child under the age of 16 contrary to s49B(1) of the Crimes Act 1958, or sexual activity in the presence of a child under the age of 16, contrary to s49F(1) of the Crimes Act 1958.
84As Champion J in The Queen v Robertson indicated[22], this does not, however, preclude the sentencing Court from having regard to sentencing principles established in previous non-standard sentence cases. I have considered the general principles which are applied in those cases in an assessment of the appropriate sentence in your case, particularly regarding sentencing purposes.
[22]Ibid [80].
Sentencing Purposes
85In terms of sentencing purposes, pursuant to s.5(1) of the Act, the only purposes for which sentences may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation. In cases involving sexual offences against children, it has often been said that the primary sentencing considerations are general and specific deterrence, denunciation of the serious nature of the crime and protection of the community. In my view, all of these considerations, together with the need to impose just punishment are sentencing purposes which must be given significant weight in the assessment of the appropriate sentence in your case.
86Your frank admissions to police in your interview, your acceptance of wrongdoing and your genuine remorse, in my view, ameliorates somewhat the need for the application of specific deterrence in your case. All of these matters, together with your willingness to engage in offence-specific treatment bode well for your prospects of rehabilitation. I note also in that regard that at age 52, you come before the Court with an absence of relevant prior criminality. Your positive progress whilst in custody also speaks well to your prospects of rehabilitation. However, the fact remains that, according to Mr Cummins, your offending was driven at least in part by your sexual deviance. Notwithstanding your willingness, it remains to be seen whether specialist intervention in this regard will achieve its end of reducing the risk of reoffending and protecting the community. I agree with your counsel's submission that rehabilitative prospects are good with appropriate specific treatment. Any sentence I impose should, amongst other things, facilitate those prospects of rehabilitation.
Serious Sexual Offender Provisions and the Need for Cumulation
87Each of the offences on the indictment are “sexual offences” for the purposes of the serious offender provisions contained in the Act. Accordingly, upon conviction for two or more sexual offences for each of which you are sentenced to a term of imprisonment, you fall to be sentenced as a serious sex offender in relation to the remaining Charges on the indictment (namely, Charges 3, 4
and 5).88According to the serious offender provisions contained in the Act, where you fall to be sentenced as a serious sex offender, protection of the community is the paramount sentencing consideration (s6D), and cumulation between sentences is also presumed (s6D).
89Whilst the Act allows for a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances, the prosecution informed me that they do not seek a disproportionate sentence in your case.
90In relation to the presumption of cumulation between sentences, this principle is of course subject to the principle of totality. That principle requires that where an offender is being sentenced to multiple terms of imprisonment, the sentence should ensure that the total sentence remains “just and appropriate” for the whole of the offending. In relation to cumulation, and the totality principle, I am also mindful of the need to recognise the separate harm caused to the different victims of your offending.
Conclusions and Sentence
91As earlier indicated, I have concluded that the objective seriousness of your offending in relation to Charges 4 and 5 falls below (though perhaps approaching) the middle range of seriousness as described by s.5A(1)(b) of the Act. I emphasise that I have considered the standard sentence for both Charges 4 and 5 as one of the factors in my instinctive synthesis, but it has not assumed a dominant or determinative significance.
92In setting out my reasons for imposing a sentence in relation to Charges 4 and 5, s.5B(5) of the Act provides that I must “refer to the standard sentence for the offence, and explain how the sentence imposed by it relates to that standard sentence.” This task does not suggest the need to attribute mathematical value to matters significant to the formation of a sentence,[23] though it does require that I identify the facts, matters and circumstances which bear upon my judgment as to the appropriate sentence. I have done this in some detail in my earlier analysis of Charges 4 and 5.
[23]R v Shane Michael Robertson [2019] VSC 145, [95]
93For the purposes of clarity I now indicate that the sentences I will impose in relation to Charges 4 and 5 are lower than the standard sentence for those offences. Having identified and considered what I consider to be the relevant factors in assessing the appropriate sentence, particularly including my assessment as to the seriousness of the offending, your degree of culpability, and the effect of the mitigatory factors that I have outlined, I have formed the conclusion that the sentences imposed in relation to Charges 4 and 5 are appropriate.
Sentence
94Mr Moulden, would you please stand.
95In relation to Charge 1, sexual assault of a child under the age of 16, in relation to your offending against Michaela, you are convicted and sentenced to a term of imprisonment of 18 months.
96In relation to Charge 2, grooming for sexual conduct with a child under the age of 16, in relation to your conduct regarding Kate, you are convicted and sentenced to term of imprisonment of nine months.
97In relation to Charge 3, sexual assault of a child under the age of 16, in relation to your non-penetrative conduct regarding Lily, you are convicted and sentenced to a term of imprisonment of two years.
98In relation to Charge 4, sexual penetration of a child under the age of 16, regarding your penetrative conduct with Lily, this being a standard sentence offence, you are convicted and sentenced to a term of imprisonment of three years and six months. This is the base sentence.
99In relation to Charge 5, sexual activity in the presence of a child under the age of 16, regarding your daughter, Amy, you are convicted and sentenced to a term of imprisonment of two years.
100I order that five months on Charge 1; three months on Charge 2; five months on Charge 3; and five months on Charge 5, be served cumulatively with each other and upon the base sentence of three years and six months, making a total effective sentence of five years' imprisonment.
101Section 11A of the Act requires me to fix a non-parole period of at least 60 per cent of the head sentence imposed upon you in relation to the standard sentence offences, those being Charges 4 and 5, unless it is in the interest of justice not to do so. In your case, having considered all of the relevant material and the submissions advanced by both parties, I have formed the view that the interests of justice do not warrant a non-parole period below 60 per cent of the head sentence. In all of the circumstances, I order that the period you will serve before being eligible for parole is three years and three months.
Pre-Sentence Detention Declaration
102I declare that you have served 291 days of pre-sentence detention, not including this day.
Section 6AAA Declaration
103I have imposed upon you a less severe sentence than I otherwise would have imposed, because you have pleaded guilty to the offences.
104Pursuant to s.6AAA of the Sentencing Act I further declare that but for your plea of guilty to the Charges I would have imposed a total effective sentence of six years and six months' imprisonment with a non-parole period of four years and six months.
Sex Offenders Registration Act
105Pursuant to s.6(1) of the Sex Offenders Registration Act 2004, upon being sentenced, you automatically become a registrable offender and must comply with the reporting obligations under Part 3 of that Act. Your reporting period is for life.
106Ms Grant, there is some documentation which your client will need to sign in relation to that latter aspect. I will ask my associate to accompany you down to the back of the Court so that those documents can be signed.
107MS GRANT: Yes, Your Honour.
108HIS HONOUR: Yes.
109MS GRANT: May I move to the dock, Your Honour?
110HIS HONOUR: Yes. Ms Grant, have you had the opportunity to ensure that your client understands the requirements under the Sex Offenders Registration Act?
111MS GRANT: Your Honour, he understands the requirements.
112HIS HONOUR: Yes, all right. So he understands that upon his release he will be required to report and then report annually to disclose a raft of personal details including his address, travel plans and matters of that nature, and in the event that he breaches his registration by non-reporting or non-compliance, there are significant penalties applicable.
113MS GRANT: Yes, Your Honour.
114HIS HONOUR: Yes. All right, are there any other matters that I need to address? Yes, thank you. Yes, you can remove Mr Moulden, please. I want to again acknowledge the presence of the victims' families in Court today. Yes, thank you.
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