Director of Public Prosecutions v Moulsdale

[2016] VCC 1682

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR -16-01040

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM MOULSDALE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	14 November 2016
CASE MAY BE CITED AS:	DPP v Moulsdale
MEDIUM NEUTRAL CITATION:	[2016] VCC 1682

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan	Office of Public Prosecution
For the Accused	Mr R. Lawson	Dwyer Robinson Pty Ltd

Pages 1 - 8

 

 

HIS HONOUR: 

1William Moulsdale, on 9 November of this year, you were convicted by a jury after a short trial of three charges of indecent assault and one charge of sexual penetration of a child under the age of ten years.  Those crimes carry maximum penalties of five years and 20 years respectively.  You are 76 years of age.  You do not have the benefit of a plea of guilty and it is hard to detect any form of remorse in this matter at all.

2You do apparently have strong family support and that goes to your credit.  You have no prior convictions of any relevance but you do have one subsequent matter of a similar nature, which does not aggravate this offending but it simply means that it cannot be said that you have not offended in this way again.

3Firstly, pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and that order is made and handed down.

4Next, because of the nature of the offending, you will be placed upon the Sex Offenders Register and I advise you that the reporting conditions will be for life.

5Because of the sentences I am to impose on Charges 3 and 4, you will be sentenced as a serious sex offender.  The Crown do not seek a disproportionate sentence and I would not have given one in any event.  I am aware that the principal sentencing purpose on those two charges is protection of the community and in your situation, where I think specific deterrence are not particularly required, that the community is not at great risk from you.  I am also aware that the charges are to be cumulative unless otherwise ordered.  I do propose to otherwise order to avoid the imposing of a crushing sentence.

6The circumstances of the offending became clear in the course of the trial.  Your victim was eight years of age.  At that time, you were working as a truck driver and were around about 50 or 52.  The complainant lived in the same area and used to go to visit her grandmother and grandfather who lived in the same street.  She became acquainted with you having seen you watering the garden.  You apparently lived at the address, we are now going back to 1990, with your then and still wife, together with three stepchildren.

7There were circumstances where the mother of the victim was working and she would go to her grandmother's after school and on weekends.  There was also a period of time where her mother had a serious work accident and the victim lived with her grandmother for a period of time.  There was another neighbour across the street, who apparently went away on occasion and during that period of time, you looked after, as well as your wife as I understand it, their house and fed their birds while they were away.  You had birds in the backyard at your house, indeed a number of them.

8In this particular trial, there was evidence given of other misconduct upon which no charges were laid.  I found the victim in this matter a compelling witness and I have no doubt whatsoever that the other misconduct that she described took place.  I must be careful in these circumstances to only sentence you for the matters upon which you have been convicted.  However, it could not be said that they occurred in isolation, and in any event, the three events of which you have been found guilty occurred over a period, it would seem, of a few months.

9In any event, the complainant recalls spending quite a lot of time at your house and on one occasion, you took her to the bird collection and conversations took place of a relatively improper nature.  As I say, I am not to sentence you for that.  You certainly asked her if she had kissed anyone, knew what kissing was and she said during the course of her evidence you were her first kiss.

10On an occasion, you asked her to go over to the neighbours to feed the birds. You kissed her on the lips and encouraged her to open her mouth and taught her how to kiss.  You said to her, "Now put your tongue out maybe a bit wider," and while she was kissing you, you said, "That's it."  You told her that she was a good kisser, that is Charge 1 of indecent assault, which in the normal course of events, I would not have imposed a custodial sentence for, but I have discussed that with counsel and the sentence I impose will be of a minor nature and will be totally concurrent.

11After that, you lifted her with both hands around her waist and placed her in a sitting position on a table that was in the yard.  You used your hands to gently spread her legs apart and then rubbed your penis against her vaginal area while kissing her on and off.  That was the first occasion where you had rubbed your penis against her vagina and that gives rise to Charge 2 of indecent assault.

12On a separate occasion, you invited the complainant to go to your workplace.  She went with you to Ryan's Transport and you walked her over to a truck and asked if she wanted to look inside.  You showed her the inside of the truck. There was a bed set up behind the seats.  She got onto the bed, you laid her down, spread her legs apart, undid your pants and laid on her.  Your pants and underpants were down to a certain degree and your penis and buttocks were exposed.  She saw your penis.  You used one hand to move her underpants to the side and rubbed the tip of your penis up and down against her vagina.  That gives rise to Charge 3, indecent assault.

13On the final occasion, she went to visit you at your house and you told her that you had a present for her.  You gave her a pink animal watch as I think she described it.  You invited her into your ute and she went with you.  You were driving towards the tip and you stopped on top of the hill.  She recalls you encouraging her to kiss you and she was lying down on the front bench seat of the ute.  You were lying on top of her, she was completely naked on her groin and upper legs.  Your pants were pulled down near your thighs, but were not completely off.  You rubbed the tip of your penis up and down against her vagina and tried to insert your penis into her vagina by said here, "Pushing against the hole."

14In fact, there was sufficient penetration for a jury to convict you of penetration and it is not an attempt, it is an actual penetration. Something she said appeared, whether someone drove past or whatever, to give you a fright and you jumped off her and did up your pants.  You drove her to her mother's house.  You had picked her up, as I understand it, from her grandmother's.  She ran into her bedroom and did not want to speak to her mother.  That version of events was strongly supported by the evidence of her mother.

15Sometime after that incident, not long as I understand it, she made disclosures to her grandmother about what had been taking place.  Her grandmother telephone her mother and later spoke to her about what had happened.  She told her mother that you were parked near the tip, got on top of her and in effect tried to insert your penis into her vagina.  She told her mother that she screamed at you, that her grandmother would be waiting for you, the police were contacted.

16The police came to the house and spoke to her about the incidents.  It is a bit hard to work out how much detail she was able to give.  The end result of it all was that police apparently spoke to you in May of 2011 and you denied the offending.  The evidence in some respects is insignificantly different to the actual Crown opening and there is anything that I have said here if it might vary in a slight way from her evidence, it is not of any real significance.  The fact of the matter is that you as a man in your early 50s befriended this eight year old child and then sexually abused her. You fall to be sentenced for that on these three occasions.

17Tendered was her victim impact statement and which was read by the prosecutor in court.  I do not propose obviously to read that victim impact statement in its entirety.  It simply shows the common, in my view, frequent results of conduct such as what you engaged in.  It has been said that a sexually abused child is very rarely a happy adult.  In this scenario, that is certainly the case.

18She said that she believes that because of what you did to her over that summer in 90 and 91, that she was hyper sexualised and was ashamed.  That is one of the reasons that she struggles to go out socially in Warrnambool.  She feels like, and this is so common in these sorts of matters, everyone is judging her the way she judges herself.  She says if she could go back with what she knew now, she would do it differently.  She said that for years later, she is still struggling with guilt, depression and health problems.  She has attempted suicide on a couple of occasions and that the sexual abuse was vivid in her memories.

19She discloses and I do not need medical evidence to support it, this all goes to her state of mind, that she was diagnosed with a Post-Traumatic Stress Disorder and a Generalised Anxiety Disorder.  She describes the health problems that she had, she avoided Warrnambool for fear of running into you.  She said that seeing you, "Makes me feel physically sick.  It is haunting.  Seeing him makes me go straight back to that little girl."  She has subsequently had problems with substances abuse and has difficulties with employment and the like. 

20The victim impact statement clearly relates to matters outside what you actually fall to be sentenced for and of course I have to take that into account when I go through this process, but what she has described is so often what is described by victims of offending such as this.  It has very long term psychological effects and can ruin lives.  Hopefully, that is not going to be the case permanently, but you are certainly even allowing for the generalisation of the victim impact statement done some damage to this lady.

21In R v Esposito back in 1993, Justice Marks said,

"A society which fails to protect its children from sexual abuse by adults particularly by those entrusted with their carers degenerate.  The offence of incest is particularly erosive of human relations and casts doubts upon the assumptions that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest.”

22He was talking about a child under eight, but what we have is the same. That is, The most prominent of which include the exploitation by a stronger will of the adult of the weaker will of a child, the physical and psychological subordination of the child to the perverted indulgence of the adult, the gross breach of trust," in your case, being trusted by the grandmother and by the mother, placed in you not only by the girl and her family, but by the community and the irreparable fundamental damage, which can be done to the victim.  His Honour was actually talking about the crime of incest, but the principles remain the same.

23The situation here is that the crime has to be regarded as very serious.  It calls for the application of general deterrence.  Specific deterrence in your situation at your age, I think are of less significance but there must also be denunciation and of course an appropriate punishment.  A gaol sentence and a gaol sentence of significant proportions is inevitable.

24I then look to matters personal to you.  Tendered on your behalf were medical reports and it is clear as well as a testimonial from a stepdaughter.  You have worked all your life, it would seem, been a truck driver for many years, you married on a couple of occasions, families have been raised and you now fall to be sentenced as a 76 year old man for offending that occurred over 25 years ago.

25Your health is not good.  The list of problems that you have had include hip replacement, heart surgery, you have clearly got prostatic hyperplasia, hypertension, chronic airways disease, it would seem that you have depression and a number of other potentially at least debilitating conditions.  There is nothing in the material to suggest that any of those matters could not be treated adequately in a prison environment.  But I do take into account the fact that you will undergo the sentence as a man in ill-health, which in these circumstances, at your age, is not an uncommon circumstance.

26I have to be careful in situations such as this that I do not impose a crushing sentence, but bearing in mind, it has to be a sentence appropriate to the offending.  Your counsel put to me that it may be that you will die in gaol.  That may be so and I take that obviously into account in terms of endeavouring at least not to impose a crushing sentence.  When you are released, you will have, as I understand it, strong family support.  I take into account the fact for, bearing in mind it will probably be at Ararat that you will undergo in protection.

27The potential for your rehabilitation, if you do the appropriate courses, should be good and I accept that in your situation, the risk of reoffending bearing in mind particularly your age should be slight.  They are all the matters that have to be taken into account and the simple fact of the matter is that you cannot do this to a child.  The community will not allow it and the courts have to impose sentences which deters likeminded people offending in this way.

28Accordingly, on Charge 1, one month.  On Charge 2, nine months.  On Charge 3, two years.  On Charge 4, that is the sexual penetration of a child under the age of ten, five years.  I direct that three months of the sentence imposed on Charge 2 and nine months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 4.  In other words, the periods of time that are not cumulative are to be concurrent and I direct that the one month on Charge 1 be concurrent.  That gives an effective head sentence of six years.  I direct that you serve a minimum term of three years before becoming eligible for parole and I direct that five days be reckoned has having been served under this sentence.  There is no other orders I have to make in relation to the matter?

29MS HASSAN:  No, Your Honour.

30HIS HONOUR:  All right, could you remove the prisoner please?

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