Director of Public Prosecutions v Moutien
[2013] VCC 1368
•30 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00188
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RODNEY MOUTIEN |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 – 12, 15 – 19 July, 26 August 2013 | |
DATE OF SENTENCE: | 30 August 2013 | |
CASE MAY BE CITED AS: | DPP v Moutien | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1368 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. L. Piggott | OPP |
| For the Accused | Ms J. L. Clark | Matthew White & Associates |
HIS HONOUR:
1 Rodney Moutien, after a 10 day trial you were convicted of two charges of sexual penetration of a child under 16 years with the aggravating circumstance that at the time the child was under ten years of age. The maximum penalty for this offence is 25 years’ imprisonment.
2 You were also convicted of two charges of indecent act with a child under 16 years. The maximum penalty for this offence is 10 years’ imprisonment.
3 The offences occurred at Berwick and Riddells Creek between May 2008 and June 2010 when the complainant was aged between five and seven years.
4 You were a trusted and long-standing friend of the complainant’s father and you were known to the complainant as “Uncle Rodney”.
5
The facts of your offending can be set out in short compass. As a trusted friend to the complainant’s father you persuaded the complainant’s parents to allow you to take the complainant with you to stay at your aunt’s house in Berwick while she was away on holiday. One night you took the complainant from where she was sleeping to a bedroom where you had been sleeping, there you penetrated the complainant’s anus with your penis
(Charge 1, sexual penetration of a child under 16 years).
6
On another occasion, during the complainant’s stay at Berwick and whilst the complainant was in the bathroom preparing to shower, you pinned her to the floor and sat on her. You put your penis into her navel
(Charge 2, indecent act with a child under 16 years).
7 After the complainant’s family moved to Riddells Creek you became a regular visitor and would stay overnight. Arrangements were made for you to sleep on a futon bed which was situated in the dining room that was used by the complainant as her bedroom. One night when the complainant was asleep you went to her bed. The complainant woke and turned over and saw you in her bed. She said that you were doing “stuff” to her that she did not like and that hurt. You put your finger in her navel, and your penis in her anus. (Charge 3, sexual penetration of a child under 16 years.)
8 On another occasion when you stayed Riddells Creek you again went into the complainant’s bed. The complainant said you were on your knees, and that you put your penis into her navel. (Charge 4, indecent act with a child under 16 years.) The complainant asked you to stop, but you did not. You told the complainant that your penis was stuck. The complainant told you to have a little pull, and you said that your penis would not come out. Shortly thereafter you ejaculated onto the complainant’s stomach, you then wiped the ejaculate off the complainant with her special blanket.
9 On 10 June 2010, some weeks after the complainant’s parents had separated, the complainant’s mother noticed a change in the complainant’s demeanour. She asked the complainant what was wrong, and the complainant told her mother of your conduct. The police were contacted and the complainant was taken to the Gisborne Police Station on 11 June 2010 where she made a VARE, the contents of which founded the charges on the indictment.
10 You were interviewed under caution by police on a number of occasions. During the first interview on 28 June 2010 you acknowledged the general background and relationship between you and the complainant and her family. You confirmed that the complainant had stayed with you at your aunt’s house in Berwick. You also confirmed that you had stayed from time to time at the complainant’s home in Riddells Creek. You denied the allegations of sexual impropriety put to you.
11 A second interview occurred on 18 January 2011 for the purposes of obtaining a DNA sample from you.
12 A third interview was conducted on 14 July 2011 in the presence of an independent third person. By this time, DNA analysis of the complainant’s special blanket had taken place. Semen stains had been located on the blanket, and samples of those stains were taken and analysed for the presence of DNA. DNA was found within the samples which matched your DNA. During the third record of interview you told the police that you had never slept in the complainant’s bed. You denied ever having sex with a female at the family’s home at Riddells Creek, and you denied ever masturbating at the family’s home. However, you told the police that you recalled an incident one night in early 2010 at Riddells Creek when you had a wet dream. You told the police that you wiped yourself with something that you could not identify, but which you found on the floor in the dining room. You denied ever ejaculating onto the complainant’s stomach and using the special blanket to wipe her or yourself.
13 Tendered as Exhibits A and B on the plea were the victim impact statements of the complainant and her mother. The complainant’s statement is a naïve document that contrasts pictorially how she felt at the time of the offences with how she feels now. Her mood has improved however it is beyond dispute that you have harmed her. The complainant’s mother writes of her lack of trust in others as a result of your offending and that her concerns for the complainant has caused her to place restrictions on the complainant that she, the complainant, resents.
14 You are now aged thirty-two years, having been born on 13 July 1981. At the time of the offences you were aged between twenty-six and twenty-eight years. In respect to your personal history, your parents separated when you were seven years of age. Thereafter you lived with your mother, and saw your father on a fortnightly basis until you were around fourteen years of age. Your father is aged sixty-four years, and you maintain a relationship with him. You have a close relationship with your mother. You have a brother who is four years your senior, and a sister who is four years your junior. You have a stepbrother from your father’s second relationship, and he is two years your junior. Your mother is aged fifty-four years and is on disability allowance because of chronic back pain. Prior to going onto disability allowance, your mother worked as a kitchen-hand in a nursing home and as a motel cleaner. You have never been exposed to violence or child abuse of any kind, including sexual abuse. You have never abused illicit substances.
15 In grade 4 you were identified as being a slow learner, and from that time you attended the Emerson Special School in Dandenong. You remained at the special school until you were about sixteen years of age. You told Ms Pamela Matthews, a forensic psychologist, that you felt “downgraded” at the special school, as you could not identify with many of the other students, particularly those with genetic abnormalities such as Down’s Syndrome.
16 Since leaving school you have had a number of jobs, including working in a computer repair shop, a pewter workshop preparing ornaments for sale, and then at a shower-screen manufacturer for a period of approximately eighteen months. You were also employed as a maintenance man for about three years. Your last employment was at a go-kart track assisting customers with protective gear and starting up go-karts. Between periods of employment and for a period of twelve months or so prior to trial you received disability allowance. The last mentioned period resulted from the anxiety that you experienced in anticipation of your trial. Additionally, you worked from time to time as a DJ gaining work by word of mouth although, with your increasing involvement with the Arise Faith Christian Church your music became more faith based. You have also been involved in local FM radio.
17 You have moved in and out of your mother’s home over the years, and at the time of your offending you were living in a caravan park in Narre Warren. At the time immediately prior to trial you were living with your mother in your grandfather’s home at Dandenong. Your grandfather is 78 years old and suffers from diabetes, a heart condition and the aftermath of a stroke.
18 Tendered on your behalf as Exhibit 2 on the plea was a report dated 22 August 2013 from Pamela Matthews, forensic psychologist. Ms Matthews noted that as a child aged about 10, in 1991, you were cognitively assessed and found to be functioning in the upper level of the special school range which was undefined in the report. By letter dated 24 July 2013 from the principal of the Emerson Special School and tendered as part of Exhibit 1, the principal wrote that the school catered for “secondary students with mild intellectual processing difficulties who fall within the 50-70 IQ range”. It is to be noted that you are eligible for disability services and were, at the time of the trial, in receipt of disability allowance, the eligibility for which arises from the assessment made of you as a child.
19 Ms Matthews administered an abbreviated intelligence test on you and assessed you at 82, falling between 76 and 92 at the 95% confidence interval. On this assessment you fell in the borderline to low-average range of intellectual ability. There appears to be a marked difference between your performance as a child and your current position.
20 Ms Matthews, rather confusingly, reported:
“Mr Moutien was assessed in the upper range of the mildly intellectually disabled range of cognitive ability whilst in primary school in 1991 and was recently assessed in custody as functioning in the borderline range of cognitive ability. Whilst this range of functioning places Mr Moutien as functioning outside the range of Intellectual Disability Services, he continues to be within the range of cognitive limitation eligible for Disability Services under the relevant Act.”
21 The actual number that is attributed to your level of intelligence may be of no particular moment. Ms Matthews opined that you have cognitive limitations that impact upon your judgment and that this ongoing problem operated upon you in circumstances where you lacked a sexually intimate relationship at the time, you had difficulties maintaining employment and you were living out of home with less psychosocial support.
22 Despite this you presented to Ms Matthews as “an articulate historian who impressed as functioning in the borderline range of intellectual functioning rather than the mild range of cognitive impairment. [You] appeared to have insight in [your] limitations”.
23 As a matter of sentencing principle intellectual disability reduces an offender’s capacity to reason as to the wrongfulness of his conduct, however in your case your intellectual deficit could only have limited your understanding of the wrongfulness of your conduct marginally. In your first interview with police you cast yourself in the role of a family friend helping out the complainant and her family because they were feeling the pressures of everyday life. You denied any wrongdoing and explained how it was that the complainant had knowledge of the kind of acts that she alleged against you. You portrayed yourself as a victim.
24 The position regarding your level of intellect is not clear. During the police interviews, to my mind, there was no indication of reduced mental function. However, you may have learnt coping mechanisms to mask your deficits from the lay observer.
25 Ultimately, I am of the opinion, that general deterrence must be moderated to some extent in your case.
26 You have suffered one period of depression caused by the breakup of a relationship when you were aged about 22 or 23 years. You were referred to a psychiatrist and prescribed Efexor. This depressive episode lasted for about a year.
27 Tendered on your behalf as Exhibit 3 was a bundle of references from relatives, the pastor of the Arise Faith Christian Church, as well as from a former employer and the manager of the caravan park where you lived at the time of the commission of the offences. The pastor and members of your family speak of your devotion to your faith, your good nature and your general good character. Your family members speak of your learning difficulties as a child and your determination and perseverance in dealing with them. Your father, together with other family members were present at your plea to support you and will support you whilst you are in prison and when you are eventually released.
28 You have no prior or subsequent convictions. Like many cases of this type your offending was situational. Unless a similar situation arises again you are unlikely to reoffend. That said, the situation in which you found yourself was one where you were trusted, you were “Uncle Rodney”. When the complainant was away from her parents' home with you at Berwick you stood in their place. Whilst sleeping in your friends’ home you debauched their daughter, the complainant in her own bed at night. Yours was a grave breach of the trust placed in you. The complainant was but a child aged between five and seven years who regarded you as a member of her family.
29 Your counsel relied upon:
(a) your lack of prior or subsequent convictions;
(b) your reduced intellect which she submitted had the effect of;
(i) reducing the application of general deterrence,
(ii) reducing your moral culpability, and
(iii)that it would impact upon your ability to cope with other prisoners;
Additionally, she relied upon -
(c) your work history; and
(d) your family support.
30 Your counsel acknowledged the seriousness of your offending, and that many of the matters capable of being relied upon, when a plea of guilty was entered, were not available to you as you stood your trial. She ultimately submitted that you would benefit from a lengthy period of supervision by the Adult Parole Board and that there should be a longer than usual differential between the head sentence and non-parole period imposed on you.
31 On Charges 3 and 4 you fall to be sentenced as a serious sexual offender and therefore protection of the community is the principal purpose for which sentence is imposed. The Crown submitted, correctly in my view, that a disproportionate sentence was not called for in your case. In my view there must be some cumulation of sentence as between each charge, although not total cumulation for the sentences imposed on Charges 3 and 4 with those imposed on Charges 1 and 2.
32 By this sentence I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or similar character. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
(i) on Charge 1, four years’ imprisonment;
(ii) on Charge 2, 12 months’ imprisonment;
(iii) on Charge 3, five years’ imprisonment; and
(iv) on Charge 4, 18 months’ imprisonment.
33 I order that one year of the sentence imposed on Charge 1, three months of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed upon Charge 3. This results in a total effective sentence of six years and nine months’ imprisonment and I fix a period of four years’ imprisonment before you will be eligible for parole.
34 I direct that it be entered in the records of the Court that in respect of Charges 3 and 4 you were sentenced as a serious offender.
35 Pursuant to the provisions of the Sex Offenders Registration Act 2004, you are a registrable offender and subject to the provisions of the Act for life.
36 I declare that you have spent 43 days by way of pre-sentence detention.
37 There are some documents that need to be brought to you in respect of the application of the Sex Offenders Registration Act and my Associate will do that in a moment. In addition, I order, pursuant to s.464ZF(B1) of the Crimes Act 1958 that the forensic sample and any related material and information obtained pursuant to the informed consent given by the respondent on 18 January 2011 be retained for placement on the database and I make this order having considered the seriousness of the circumstances of the offence, I am satisfied that in all the circumstances the making of the order is justified for the following reasons: the seriousness of the circumstances of the offending warrant the order and the granting of the order is in the public interest and I make that order.
38 You may be seated please, Mr Moutien.
39 Mr Moutien, what's going to happen now is my Associate will bring you some documentation. That relates to the application of the Sex OffendersRegistration Act. I have no doubt that Ms Clark, when she is available, and/or her instructing solicitor will visit you for the purposes of explaining the contents of those documents fully to you.
40 MS CLARK: That's correct, Your Honour.
41 HIS HONOUR: Thank you, Ms Clark.
42 (Orders signed and acknowledged.)
43 You may remove the prisoner.
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