DPP v Momah [2025] VCC 1960

(a) Sexual assault of a child under the age of 16 carries a maximum penalty of 10 years' imprisonment. It is a standard sentence offence of 4 years; and

(b) Sexual penetration of a child under the age of 12 carries a maximum penalty of 25 years' imprisonment. It is a standard sentence offence of 10 years.

1. You were born in August 1993 and at the time of the offending you were 29 years' old.
2. Your victim is Abigail Ogilvie was born in 2011 and was 11 years' old.
3. At the time of the offending, Abigail was residing in a Department of Family Fairness and Housing (DFFH) residential care address in Point Cook. Two staff were always rostered on to care for her.
4. On 28 February 2023, Abigail was at home in Point Cook packing up her belongings as she was due to move to a new residential care address the following day. At the time, no other children lived at that address. You and another staff member were working as her residential care workers and were rostered on during the afternoon shift ending at 10.00 pm.
5. The other carer left the home earlier than she was allowed to so that she could attend to a personal matter. For a period of approximately twenty minutes you were alone with Abigail before the two workers on the night shift arrived at the house. Abigail had gone to sleep on the couch in the living room by this time. She was wearing her school uniform.
6. Whilst Abigail was asleep on the couch, you joined her on the couch and you put one leg over her and straddled her in what she described as a 'frog like' position. She could feel your weight on her but pretended to be asleep as she was worried about what was happening. You kissed her on the lips and put your tongue in her mouth (Charge 1 - sexual assault of a child under 16).
7. She tried to move away from you but you moved her head back into the position you wanted. She pretended to be asleep to try and avoid things getting worse. You then unbuttoned her school dress and touched, kissed and licked her breasts (Charge 2 - sexual assault of a child under 16).
8. You pulled her shorts and underwear down to above her knees and pulled your own pants and underwear down. Abigail could feel your skin on her leg. She told the jury that you put your penis into her vagina for approximately 15 minutes which caused her pain. You did not use a condom. (Charge 3 - sexual penetration of a child under 16).

1. Once you had left the room, Abigail went to the toilet and texted her Aunty, Monique Ryan[3] and told her what happened. On 1 March 2023, at 12:09 am, Ms Ryan contacted the police to report what she had been told by Abigail. In the meantime you had left the house and gone home.

1. Police attended the address at 1:15 am on the 1 March 2023 and spoke with the two newly arrived carers who were on the shift. The night shift carers told police that you were the only carer present at the house when the shifts changed over.
2. Police also spoke to Abigail and took her clothes as exhibits. After being taken to a police station, Abigail was eventually taken to another residential care home later.
3. Later on the 1 March 2023, Abigail was taken by police to the Royal Children's Hospital for a Forensic Medical Examination. Dr Challis, a Forensic Medical Expert tried to conduct the examination. However, Abigail refused to allow her to conduct a genital examination. After discussion with her supervisor, Dr Challis permitted Abigail to self-collect the forensic specimens using a medical examination kit.
4. Later on 1 March 2023, Abigail participated in a Video and Audio Recorded Examination with police.
5. Forensic Officer Bradley examined the DNA samples obtained by Abigail at the hospital and compared them to yours. There were two contributors to the sperm fraction in the swabs. One of the contributors was assumed to be Abigail and the other contributor was found to be 100 billion times more likely to be you. Similar results were obtained from the analysis of Abigail's underpants.

1. Abigail Ogilvie, who is now 14 years' old, provided a victim impact statement to the Court in which she said:

This experience has had a significant and lasting impact on my life. Since the assault, I have struggled with my sense of safety, trust and confidence. What happened to me took away a part of myself that I'm still trying to rebuild. I no longer feel the same comfort around boys or males like I used to, and I find myself constantly questioning peoples intentions, even when they have done nothing wrong. The fear and anxiety sits with me everyday and it effects the way I interact with others. I find it hard to explain the way I interact with others. I find it hard to open up to people and let them in. The situation follows me everywhere I go! Following into my daily routines, still to this day, I still have that fear that NO ONE should have. This effect is a long term effect and it doesn't go away because time has passed.

2. The court acknowledges the courage of Abigail and is grateful that she has been prepared to inform it of these very personal matters.
3. In sentencing you, I have taken into account the profound effects of your offending on Abigail.

1. Sentencing is a complex task, and a court is required to synthesise a wide range of matters.
2. Section 5B(2)(a) of the Sentencing Act 1991 (Vic) requires the court to take the 'standard sentences' for the three offences into account as one of the factors relevant to sentencing. Charges 1 and 2 each attract a standard sentence of 4 years; the standard sentence for charge 3 is 10 years' imprisonment.
3. Further, the court must explain in its reasons for sentence, 'how the sentence imposed by it relates to that standard sentence'.[4]
4. This necessarily requires the court to assess the relative seriousness of the offending taking into account only objective factors and then to compare the assessed seriousness with a hypothetical offence 'in the middle of the range of seriousness'.[5] I will return to this shortly.
5. Finally, each of the offences with which you have been charged is a 'serious sexual offence' within the meaning of Part 2A of the Sentencing Act. It follows that if the court imposes sentences of imprisonment in respect of charges 1 and 2, you are to be sentenced as a 'serious offender' in relation to charge 3.
6. In determining the length of the term of imprisonment to impose in respect of charge 3, the court must regard protection of the community as the principal purpose for which sentence is imposed.[6] The prosecution did not seek a disproportionate sentence and I will not impose one.
7. Further, the sentence that I impose in respect of charge 3 must be served cumulatively on the other sentences unless otherwise directed.[7] I note that this provision must be applied while also having regard to the principle of totality[8] and I have done so.
8. In a case referred to the court by the prosecution,[9] the Court of Appeal discussed how difficult the application of the standard sentence provisions can be in cases involving the offence of sexual penetration of a child under 12. As the Court there observed, the offence of sexual penetration of a child under 12 'covers a wide range of sexual misconduct as to make the notional "mid-range" very difficult to identify'.[10]
9. Some assistance is provided by some comparable cases to which the court was referred.

1. A sentencing Judge must have regard to current sentencing practices. The purpose of this is to promote consistency in sentencing.
2. Consistency in this regard means consistency in the application of sentencing principle and not numerical consistency. Sentencing in a particular case involves a consideration of the particular facts of both the offending and the offender.
3. The prosecution referred the court to two standard sentence cases said to be somewhat comparable. The first was the case of McPherson v The Queen [11] in which the offender was a family friend of the victim and was in a position of trust.
4. I have gratefully adopted the following summary[12] of the salient features of the case_:_

In McPherson, after a successful appeal by the offender, this Court imposed a sentence of 6 years and 6 months' imprisonment on one charge of sexual penetration of a child under 12. The relevant act was described as an 'isolated example of relatively fleeting digital penetration'. The victim was eight. The offender had pleaded not guilty but had no prior convictions for sexual offending and there were strong matters in mitigation: the offender had had a 'traumatic and disadvantaged past' and his significant mental health difficulties would make his service of a prison term greatly burdensome.

5. In Lombard v The King,[13] the second of the cases, the offender was the partner of the victim's grandmother. The offending involved digital penetration of the 10 year old victim's vagina as well as 3 sexual assaults involving touching of the chest under the victim's top, touching of the vaginal area over clothing and playing with the victim's nipple under her clothes. All of the offending occurred in the victim's home. The offender was found guilty after a jury trial.
6. The Court of Appeal characterised the offending as 'very serious and, stated that but for the significant matters of mitigation available, 'would have expected sentences no shorter than the relevant standard sentences to be imposed in respect of each offence'.[14] Those matters of mitigation included: that the offender, who was 85 at the time of sentencing, suffered from significant mental and physical ill-health and that there had been a significant delay in the finalisation of the case.
7. Returning to your case, I have assessed your offending in relation to charge 3 as above the hypothetical mid-range. You callously took advantage of a young girl in your care for your own sexual gratification, the community expects a court to punish such behaviour very severely.
8. The following are aggravating features of your offending:

(a) You were the designated carer of Abigail who was 11;

(b) You were 29 years' old, nearly three times Abigail's age;

(c) Abigail was alone and highly vulnerable at the time;

(d) The offending occurred in Abigail's home where she was entitled to feel safe;

(e) The penetration was penis in vagina without a condom and you ejaculated inside Abigail's vagina; and

(f) You must have been aware of Abigail's rejection of your sexual advances.

1. Although it is not mitigating, it is relevant that your offending was unplanned and spontaneous. You took advantage of your colleague's early departure from work.
2. The sexual assault involving kissing Abigail (charge1) is a low level example of this offence falling well below the notional mid-range.
3. Charge 2, which involved touching, kissing and licking Abigail's breasts, is a more serious example but still falls below the notional mid-range.

1. You were born and raised in Nigeria. The country has faced civil unrest which caused instability. You were a young child when your parents passed away, and you were moved around the homes of your extended family. You have three younger sisters. You told Dr Dawson, a psychologist who examined you at the request of your lawyers, that you were exposed to a great deal of adversity including physical and sexual abuse and neglect.
2. You completed school until the age of 14, after which you began an apprenticeship course. You were living with your uncle at the time and needed to join the workforce to support your sisters.
3. You moved to Australia in 2014 when you were 21 with one of your sisters. You initially found it difficult to integrate into life in Melbourne and difficult to obtain employment. You were eventually able to secure a job as a cleaner at RMIT University through your uncle. You have worked various jobs since this time, as you continued to support your family in Nigeria and help them move to Australia. You have not been in contact with two of your sisters since moving to Australia.
4. You met your wife while living in Nigeria. She remained in Nigeria when you migrated and gave birth to your daughter in 2015. The two of them migrated to Australia in 2017. During the Covid-19 pandemic, you suffered the neonatal loss of your second child. You took some time away from work to be with your family, and then you began working casually. It was at this time you completed your qualification in youth work.
5. You initially began working as an NDIS support worker, before you became a youth worker. You had been working in the youth industry for 18 months at the time of your arrest.
6. Your wife and daughter returned to Nigeria in 2023 following your arrest. Through-out this period you continued to be in a relationship, however your wife applied for a divorce in 2024.
7. You have four children, one of whom passed away and one with another woman. All your children are currently living in Nigeria. When you were granted bail in March 2025 you were able to have contact with your children via WhatsApp. You have not spoken with your wife and children since you re-incarceration following this verdict.
8. During the periods of your incarceration, you have been prescribed medication for depression. You have no relevant criminal history, the only matter on your criminal record was for obtain property by deception and theft in 2021.

1. There is little relied upon by your counsel by way of mitigation.
2. You ran a trial as was your right after a hearing under section 198A of the Criminal Procedure Act 2009 (Vic), at which three witnesses were cross examined, and the admissibility of the DNA evidence was challenged. Your challenge was partially successful in that it resulted in the prosecution having to re-label the samples in a neutral manner.[15]
3. While it is of course not aggravating that you contested the charges, it does mean that you do not have the benefit of a guilty plea discount and there is no evidence of any remorse on your part despite the verdict of the jury.
4. In fact, you told Dr Dawson that you are confused about where the allegations came from.[16]
5. While your counsel placed no reliance on any of the Verdins principles, I have taken into account in a general manner the opinion of Dr Dawson that you 'could be at a greater risk of mental health deterioration whilst in custody due to suppressed trauma'.[17] I have also taken into account, in a general sense your deprived childhood.[18] I have moderated the sentence that I have imposed to a moderate extent, having regard to these matters.
6. Mr Thyssen drew the court's attention to the low recidivism risk conclusion by Dr Dawson, which I accept. Based on this assessment, your work history, your family history and your lack of relevant prior offending or subsequent offending, I assess your rehabilitation prospects as good.
7. Your counsel also submitted that all of the offending occurred within a short time span and can be properly categorised as a single incident for totality purposes. I accept this submission.
8. Finally, your counsel provided the court with a character reference prepared by Pastor Sunny Davies of the Redeemed Christian Church of God. While the referee speaks highly of you, as I explained to your counsel, I can give only minimal weight to the reference as it does not appear that the author was aware of the jury's verdict.

1. Before announcing the sentences in this case, it would be remiss of the court not to mention that the evidence revealed some concerning aspects of the police investigation. It is incumbent on everyone involved in the investigation and prosecution of cases involving allegations of serious sexual offending against children, to treat those children as sensitively as possible.
2. The evidence before the court[19] was, that although Abigail was in care, she had at least one trusted family member, her Aunt Monique Ryan. As noted, the first complaint about the offending was made to Ms Ryan. Further, staff at the hospital were able to contact Abigail's step father to obtain his consent to the medical examinations that they wished to conduct involving Abigail.
3. On 28 February 2023, Abigail was 11 years' old. It was a weeknight and she had school the next day. The offending occurred at approximately 11.00 pm after Abigail had gone to bed. Police first arrived at the house at approximately 1.15 am. Abigail was spoken to by at least two officers. She provided detailed accounts of the offending.
4. At approximately 3.20 am on 1 March 2023, Abigail was then taken to the Werribee police station by officers where she was provided with a drink, some food and a blanket. She was placed in what was described as a 'soft interview room'. There was no bed available at the station but when police checked on Abigail at around 5.00 am, she had fallen asleep on a chair.
5. Police understandably decided that Abigail could not return to the care home where the offending had occurred. Eventually, an alternative care home was found and Abigail was taken there at approximately 5.37 am.
6. At approximately 9.30 am on 1 March 2023, DLSC Zeffert contacted that home and was told Abigail was awake. It does not appear that Abigail's carers were asked if she would be fit to be interviewed later that day. They were well placed to offer a view. Abigail had not showered as Police had directed her not to.
7. DLSC Zeffert took Abigail to the Royal Children's Hospital where she met Forensic Medical Officer, Dr Sarah Challis at approximately 11.15 am. As detailed in the DNA ruling,[20] Dr Challis allowed Abigail to conduct her own intimate forensic examination. The evidence before the court is that this is highly irregular for a child. It appears that at no point did Dr Challis or anyone else at the hospital try and ensure that Ms Ryan or another trust adult was at the hospital to support Abigail through what must have been a very challenging process on little, if any sleep. It is unclear whether Abigail was asked if she would like an adult to be present. As noted, Dr Challis was able to make telephone contact with Abigail's stepfather but it appears that he was not asked to attend the hospital to support Abigail either. It is not clear why not.
8. At 2.15 pm, on 1 March 2023 DLSC Zeffert picked Abigail up from the hospital and took her to her office at the Werribee police station. It does not appear that DLSC Zeffert sought the professional opinion of Dr Challis (a qualified paediatrician) about whether Abigail was in a fit state to be interviewed. Nor did police seek an opinion from a police doctor.
9. At 3.37 pm, a video and audio recorded interview was conducted by DLSC Zeffert with Abigail. The interview concluded at 4.37 pm. Again, it appears that no attempt was made by police to see if a trusted adult could be present at the station to support Abigail through this questioning. Nor was Abigail asked if she wanted an adult to be present. The VARE was at least the fourth time that Abigail had been asked to describe the offending within a period of less than 18 hours after little if any sleep.
10. DLSC Zeffert was asked about this interview by the learned prosecutor. The following exchange occurred:
    1. Is it, in your experience, ideal to speak to a young person in an interview in those conditions?
    2. It's a consideration. Um we wanted to obtain her statement as quickly as possible. Um and we just had to weigh up - so she was - she appeared - she had a - she didn't have much sleep, but she was okay, um and that's why we did get the statement then.[21]

1. The court accepts that no-one involved deliberately neglected Abigail's wellbeing; all were well intentioned. However, based on the events described above, there must be a better and more humane way to investigate a case such as this. One can only wonder why the conduct of the VARE was so urgent that it could not wait one day after Abigail had a decent night's sleep. After all, one of the conversations she had with investigating police within a few hours of the offending had been recorded by a body-worn camera. Further, there must be a real concern about the quality of the answers that Abigail would be able to provide in such circumstances.
2. It is this court's expectation that everyone involved in this investigation should reflect on what occurred and consider any improvements that could be made in the event of a similar case in future. Sadly, cases involving allegations of sexual offending against children in State care are all too frequently seen in this court.

1. Turning then to the orders the court makes.
2. On charge 1, sexual assault by kissing, you are convicted and sentenced to 2 years' imprisonment.
3. On charge 2, sexual assault by touching and licking, you are convicted and sentenced to 3 years' imprisonment.
4. On charge 3, sexual penetration of a child under 12, you are convicted and sentenced to 11 years' imprisonment. This sentence exceeds the standard sentence because of the court's assessment of the objective gravity and all matters discussed earlier including that it is imposed after a trial.
5. The charge 3 sentence is the base sentence.
6. I order that 6 months of the sentence on charge 2 be served cumulatively on the base sentence. The remaining sentence is to be served concurrently.
7. The total effective sentence is therefore 11 years and 6 months.
8. You must serve 7 years in custody before you will be eligible for parole.
9. Pursuant to section 18 of the SA, I declare that the 704 days (not including today) you have spent in custody since conviction is to be reckoned as time served in respect of the sentence I have imposed today.
10. The records of the court will record that you were sentenced as a serious sexual offender.
11. You are a registerable sex offender and the reporting period is 15 years. You will shortly be provided with some information about your obligations and it is important that you understand the onerous nature of your obligations. You should seek legal advice about this as the consequences of failing to comply can be very serious.

[2] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1, 19 [38].

[4] Sentencing Act 1991 (Vic) s 5B(5).

[5] Ibid s 5A(1)(b).

[6] Ibid s 6D(a).

[7] Ibid s 6E.

[8] DPP v Hum (a pseudonym) [2022] VSCA 57, 23-4 [113]; DPP v Wilkerson (a pseudonym) [2025] VSCA 318, 18-9 [91].

[9] McPherson v The Queen [2021] VSCA 53 ('McPherson').

[12] DPP v Sutcliffe (a pseudonym) [2024] VSCA 63, 12 [51], references deleted.

[13] [2025] VSCA 51.

[15] DPP v Momah (Ruling 1) [2025] VCC 464.

[16] Psychological Report written by Dr Hannah Dawson dated 30 October 2025, 5 [48]-[50].

[18] Bugmy v The Queen (2013) 249 CLR 571.

[19] Some of the evidence was heard by the jury while other aspects were heard only by me during the pre-trial argument about the admissibility of the DNA evidence - see [2025] VCC 464.

[20] See [2025] VCC 464, 15-24 [56]-[25].

[21] Transcript of Proceedings, DPP v Momah (County Court of Victoria, CR-23-02101, Judge Rozen, 11-12 September 2025) (DLSC Zeffert) T322.20-26.