Director of Public Prosecutions v Movel (a pseudonym)
[2024] VCC 193
•28 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT MOVEL (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 February 2024 |
DATE OF SENTENCE: | 28 February 2024 |
CASE MAY BE CITED AS: | DPP v Movel (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 193 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | Office of Public Prosecutions |
For the Accused | Ms C. Boston with | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1Robert Movel,[1] on 20 November 2023, you were found guilty by a jury of eight charges of sexual assault of a child under the age of 16 years. At the time of this offending, the child was aged roughly seven to nine years. That crime carries a maximum penalty of 10 years' imprisonment.
[1] A pseudonym.
2You are 59 years of age and have maintained your innocence. Accordingly, I sentence on the basis that there is no remorse and also that there is no utilitarian benefit evolving for the victim of your crimes. Those matters in no way aggravate your situation. I simply point out that there are matters in the normal course of events that, if there is a guilty plea, act very much in moderation of the sentence to be imposed.
3You have no prior convictions.
4There has also been a significant delay of some three years between the making of the allegations and the hearing of the trial and I take that delay into account. Importantly, I accept from what your counsel says, that you have found it a difficult period of time and you have not offended within it.
5The offending, that I will describe in very brief terms, has to be regarded as serious and calls for the application of general and specific deterrence in the normal course of events, denunciation and appropriate punishment. As I have indicated to your counsel, in these circumstances, I think that the offending is very opportunistic and isolated, and I find that there is no need for special deterrence for you. I would be stunned if this ever happened again.
6General deterrence obviously plays a significant part in this sentencing and is one of the reasons why, almost invariably, perpetrators of such offending go to gaol.
7The sentences involved are what are known as standard sentences. That means that they have a standard sentence of four years. I am well aware of the decision of R v Brown and other authorities in relation to that. The standard sentences are a guideline, if it can be put that way, for judges, but in no way interfere with the instinctive synthesis. I then look at the objective seriousness of the offending just to see whether the sentence imposed should be above or below that.
8The aggravating situation for you in the events that I am about to describe are that you were in a position of trust and that the victim was of tender years.
9On the other hand, there are a number of factors which are often present in these situations which do not exist in yours. Firstly, I accept your counsel's submission that the offending was in two incidents and you are not to be sentenced for uncharged acts. They cannot be said to be in isolation but they nevertheless remain two incidents. There must be significant concurrency for each and a degree of accumulation between the two incidents.
10In none of this offending was there gratuitous violence. In none of these incidents were there aggravating features, such as dirty talk or ejaculation or anything like that. There was no rubbing, there was no prolonged actions, 10 to 20 seconds seems have seen each action out. The offending for which I am to sentence you cannot have taken overall more than about four or five minutes, I would have thought, in terms of what has been described to me.
11Those factors in my view, being aware of decision of Brown and the relevant legislation, places the offending at the lower end of offending. I find it offensive that judges are called upon to make statements like that when victims are listening, but I am bound to do it as a matter of law and I simply say that this is no way to be seen as a reflection on the victim or the victim's family.
12I have before me victim impact statements which I take very much into account. They show why offending such as this calls for a custodial sentence and why likeminded people must be deterred from it. One hopes that, as the future goes on, that they will be able to recover from that and get some finalisation into their lives.
13The offending can be described in relatively brief terms and I am simply going to do it in a general sense. Obviously I am not privy to every single fact that the jury found, but these seem to me to be the basic ones that they must have found to convict you beyond reasonable doubt of the offending.
14You effectively were the step-grandfather of the complainant and she was born in 2011. She was staying at your place when visiting her grandmother, who gave evidence during the course of the trial. You on numerous occasions - I make it very clear I am only sentencing for two occasions - behaved in the way that is about to be described. I describe that situation where the complainant and her brother stayed at your address while her parents were at a social event. She was awake and reading a book about 7 in the morning when you entered the room wearing a dressing gown and pyjama shorts. You said to her, 'Time to do our secret thing, sit on the bed', she said, 'No', and you essentially talked her into it, I suppose. You began to touch her with your hands over her clothing. Then you placed your hands underneath her clothing, touched her at the breast area, her bottom and by necessary inference her vagina.
15You then instructed her to touch you on your nipples and your penis. She refused to and you then placed her hand on your nipples and on your penis and she said, 'I do not want to do this, Poppy', but you ignored it. You then touched her again to the chest, buttock and by inference the vagina area, but they are not part of the charge of which you have been convicted. I regard them for these purposes as immaterial.
16She then described in her evidence by way of a VARE obviously, various uncharged acts which I do not need to refer to here but which are of very similar nature.
17The other incident which gives rise to the charges happened around about January or February 2020. Again, the complainant and her brother were over at your premises. You said something about her brother waking up, which is how the occasion is identified. She said that she saw the time was later than usual after looking at her watch but there is real significance here. You again touched the bare skin of her chest area, buttocks and vagina. When you touched her on this occasion, she said she felt all tingly to her vaginal area and got goosebumps.
18The eight matters I have referred to are the eight charges of which the jury found you guilty. When interviewed, you obviously denied it and as I have already indicated, it does not aggravate the situation. You ran a trial.
19By reason of the offending, you are to be placed on the Sex Offenders Register and I advise you the reporting condition will be for 15 years pursuant to s6A of the Sentencing Act because of the sentencing period and are to be treated as a serious sexual offences after Charge 2.
20I make it clear that this is a situation where I am aware that the legislation says cumulative unless otherwise ordered. This is clearly a situation where there must be a lot of concurrency because there are only two incidents and I am aware that community protection becomes a principal sentencing purpose. I do not think there is anything I need to do to protect the community from you anymore. I think this sentence will adequately deal with all that. The Crown do not seek a disproportionate sentence and I would not have given one in any event.
21As I have indicated during the course of discussion, these matters can be extremely serious and they can be almost, as in your situation, bizarre. Your background is a strange one, and I am not going to make any judgments about it, but I take into account the matters personal to you. I take into account the character references that have been tendered on your behalf. As I say, not many people admit to friends that they have been molesting a child. Also, I take into account the report of psychologist, Ms Matthews, who I can only assume had not read the statement of the mother of the victim before making some strange comments. I clearly accept what she says about your personal psychological condition and I accept also, that the risk of you reoffending is low indeed.
22Your prospects for rehabilitation should be good. You have always had employment and been a hardworking man all your life. As I understand it, you have a stable accommodation, you have family support and indeed a daughter here to support you today. So the prospects of upon your release you being rehabilitated, in my view, should be excellent.
23There are a number of factors involved. The first one, I have already mentioned, is delay. It is clear from material provided before me - I do not propose to read great slabs of it - that you do gaol hard because of all this and because of the situation that you are in, have major depression. I accept that limb 5 of Verdins applies and that gaol is a very difficult proposition for you in your situation with your psychological frailty. I accept that you attempted suicide subsequent to being charged of these matters and I can really take that no further other to say I do give full weight to limb 5.
24Also, in your situation, you have been a carer of your mother who is now aged. You have to undergo imprisonment with the burden of knowing that you will be unable to do that and there will be very little contact.
25Perhaps even more importantly than that, I had explained to me by your counsel that your 38-year-old son has a condition known as Trisomy 13 (Patau syndrome). That is a rare genetic condition and it involves a number of symptoms. The reality of it is that from what I can gather here, that what your counsel told me is that this often causes death before the baby even turns one and often results in miscarriage but in any event your child survived is now 38 years of age, I am told. He has been in residential accommodation since he was about eight years old. He is unable to speak. He is obviously unable to get visits from you personally over the present period of time. He does not understand why he is talking to you on the screen and why you cannot come to see him. He clearly has a lot of difficulties I am sure with that and he is struggling with you being incarcerated.
26That is not a matter I take into account on his behalf. It does not reach exceptional circumstances, but I am sure, despite your denials of the offending, that you have within yourself, appropriate guilt that you have left your disabled, if that is not an unfair word, child in such a situation, and that you are not able to provide the support which you know full well he personally needs.
27In any event that makes your imprisonment, in my view, much harder. It is of your own making, but that is just the fact of the matter and I take that into account in terms of the length of the sentence that I impose upon you.
28Your background can be described pretty succinctly. I might just read a couple of paragraphs of the report of Ms Matthews, just so there is a background so people might interpolate things into, which I probably have subconsciously, at least.
29Ms Matthews writes that you grew up in Ballarat. Your family was intact and significantly involved in the Salvation Army. You have an older brother and an older sister and a younger brother. There was a foster sister who lived with the family that moved out when she was 16. You describe your parents' relationship as being somewhat loveless or lacking warmth. There were tensions between your parents as your older sister would even be consulted on family occasions and her judgment would be deferred to rather than your mother’s. In fact, when your older siblings left home, you mother moved out of the marital bedroom, you said.
30You describe the relationship between you and your siblings as detached and reflecting the parental relationship, and I understand that. Your three siblings are all Salvation Army ministers, as were you. Rather appropriately, Ms Matthews says despite this level of family dysfunction - at that moment, I do not think it is quite what she meant - you do have your family's wholehearted support throughout the legal matters. I do not know about the others, but your children that are able to clearly do.
31Very much to your credit, as I have indicated, you have got a very good work history. Your father had managerial roles and died in 1991. You described him as a strict and rigid man. As I have indicated, your mother, who's now 88 I see here, is in reasonable health and lives independently but you have been living with her since being charged and have been supporting her with the tasks of day-to-day living.
32I do not think I need to go through your educational aspects. You went to about Year 11 or 12 and you went to the Ballarat School of Mines. After that, you began working and have had many jobs over the years. You worked as a minister for a number of years. You were involved in selling cars at the time that these charges were made against you and you lost that job because of it. You had gone into business with your father at one stage but unfortunately that ended up in financial disaster.
33It is clear that throughout your life you have been involved in community work. You been an active member of your church and, it would seem very clear from this, a good parent to your own children.
34All those factors are take into account on your behalf, but at the end of the day, despite your denials of it, you cannot do what you did and there has to be an appropriate punishment. I hope that the victims - by that I mean the family as well as the complainant - understand the situation and there is hope that you, despite as I said your denial, understand it as well.
35Accordingly, I sentence you as follows:
·Charge 1, two months;
·Charge 2, four months;
·Charge 3, seven days concurrent;
·Charge 4, seven days concurrent;
·Charge 5, four months;
·Charge 6, two months;
·Charge 7, seven days concurrent;
·Charge 8, four months.
36One month of the sentence imposed on Charge 1, one months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 6 and what I will then do is two months of the sentence imposed on Charge 5 to be served cumulative upon each other and upon the sentence imposed on Charge 8.
37Now in my calculation it gets you nine months.
38MS PEZZIMENTI: Yes, Your Honour.
39HIS HONOUR: Everyone is okay with that?
40I direct that 91 days be reckoned as having been served under this sentence. Obviously 6AAA does not play a part.
41Are there any other orders I need to make?
42MS PEZZIMENTI: No, Your Honour.
43HIS HONOUR: Ladies?
44MS BOSTON: No, Your Honour.
45HIS HONOUR: There is no certificates or anything like that that we needed from the trial? I do not think there were.
46MS BOSTON: I do not think so, but if there is ‑ ‑ ‑
47HIS HONOUR: That is all right. Just let me know, but I just like to try and do it in one hit if we can.
48MS BOSTON: Yes.
49HIS HONOUR: I am pretty sure there were no other ancillary orders that needed to be done. I do not know whether there are any Magistrates' Court matters still in the system. I would have thought in this situation there probably are not because ‑ ‑ ‑
50MS PEZZIMENTI: I do not think so.
51HIS HONOUR: ‑ ‑ ‑ realistically some of these would have been heard in the Magistrates' Court but if there are, I will simply strike them out.
52MS PEZZIMENTI: Thank you.
53HIS HONOUR: That works. Otherwise we will just be done with that.
54All right. So thanks for that. What I will do, Ms Boston, we will clear the court and you can talk to your client.
55MS BOSTON: Thank you, Your Honour.
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