DPP v Light [2019] VCC 1778 (31 October 2019)

Last Updated: 6 November 2019

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01389

Indictment No. J11167679.1

DIRECTOR OF PUBLIC PROSECUTIONS
v
PAUL LIGHT

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2019
DATE OF SENTENCE:	31 October 2019
CASE MAY BE CITED AS:	DPP v Light
MEDIUM NEUTRAL CITATION:	[2019] VCC 1778

REASONS FOR SENTENCE

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Subject: Subject: common law assault of 11-year-old girl, summary offence pertaining to showing the 11-year-old girl some pornographic footage. No prior criminal history. Late plea but to different charges. Offending occurred in 2013. Elected to go for trial. Resolution day before special hearing

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Slim (For Plea)	Office of Public Prosecutions
	Mr P. Pathmaraj
	(For Sentence)
For the Accused	Ms M. O'Brien	Stary Norton Halphen

HIS HONOUR:

1. Paul Light, you have pleaded guilty to one charge of common assault and one summary charge laid under the Classifications (Publications, Films and Computer Games) (Enforcement) Act 1995. The maximum penalty for the common assault matter is five years' imprisonment. The summary matter has a maximum penalty of six month's imprisonment or a fine of up to 60 penalty units, which is over $8,000, taking into account the value of a penalty unit at the time of that crime.
2. You were born on 20 September 1968. You were 44 years of age at the time of the offences and you are now 51 years of age. You have no criminal history.
3. This matter was opened to me yesterday by Mr Slim, who appeared on behalf of the Director of Public Prosecutions of this State. He opened in accordance with an agreed six-page written opening dated 30 October 2019. That document was marked as Exhibit A on the plea. Your counsel, Ms O'Brien, told me that it was an agreed factual statement. It is unnecessary then in those circumstances for me to descend to the full detail of the crimes that you have committed or the full sentencing facts. I will sentence in accordance with that agreed material.
4. That is important here, as there were different charges on the trial indictment. There was a trial summary and then there was a first version of the plea summary. The ultimate version, which has become Exhibit A, has a number of matters omitted that had in fact been in the first plea summary. What is critical is that I sentence according to the updated statement, which is, as I say, Exhibit A in these proceedings.
5. There has been a long journey to get to this point, with offending right back in April of 2013 and a report to the police made in 2017. By way of more recent background, this matter was listed before me as the trial judge for trial earlier this week. I say this matter, but of course at that stage there were the two charges of committing an indecent act with a child under the age of 16 which you had been committed to this court on. They were the two charges on the trial indictment which had been filed.
6. There had been a committal in the court below in July of this year and on Monday we were about to conduct a ground rules hearing, deal with some preliminary evidentiary matters, and then we were going to head into the special hearing, which was listed on Tuesday of this week. Your 17-year-old victim was to be called at that hearing to give evidence and to be cross-examined in that exercise. I made some comments on Monday and I asked if there had been any discussions between the parties. Both counsel asked me to stand the matter down, which I did.
7. There was then discussion between the parties and I was told late on Monday that the matter had in fact resolved, that a trial would not be necessary. A plea indictment was filed over. You were then arraigned on that filed-over indictment late on Monday afternoon and pleaded guilty to the common law assault. In the meantime the summary matter has been filed out of time and uplifted to this court so that the matter could proceed before me.
8. Your plea to that matter was taken yesterday. I also had you rearraigned on the plea indictment yesterday. Then the matter was opened to me by the prosecutor and then your counsel made submissions as to sentence. But that all took place after I had rejected what I considered to be a rather surprising application to remit all these matters back down to the Magistrates' Court. I say surprising as I had no understanding on Monday that this was even in contemplation. Quite the opposite in fact.
9. Ms O'Brien on Monday asked me to adjourn the plea to Wednesday to permit her to obtain plea material and to facilitate the filing and the uplift of the summary matters so that the plea could in fact be conducted in this court. Anyway, that is by the by. I refused the application to remit. One of my reasons, but just one, for refusing to remit was my desire and ability to swiftly finalise this matter, something I could have no confidence in occurring if I remitted it back to the Magistrates' Court, given the sorry chronology placed before me.
10. This matter started out in the Magistrates' Court summary stream and it went as far as a ground rules hearing in the lead-in to a three-day summary contest fixture in the lower court. You then changed tack and then took the matter for trial, as was your right. But who could say what would happen if I remitted it or when it might be finalised if I remitted it? Would it stretch out into the New Year? Who knows? Anyway, the s.168 application was an application that you were well entitled to make and one that I refused. That is not in any way to be taken into account by me in this sentencing task. It is of course entirely irrelevant to my sentencing task.

The Facts

11. The essential acts alleged against you have never changed. Conduct which you have always until now disputed was at the heart of the trial indictment charges. The charges have of course changed and so too the maximum penalties, but the physical acts have not changed. That is the ‘hallway incident’ and the ‘Kardashian sex tape’ conduct. They remain the same.
12. You were a family friend of the victim's family. You were also their builder. As of April 2013, your victim, who I will not name in these reasons, was 11 years old. She had a younger brother. It was school holidays and you were working on the house at that time. Their mother was in the habit of going to the gym in the morning and she left them in your care when she did so. On this occasion in April of 2013, whilst the mother was out, you were running up and down the hall with the young girl trying to tickle her.
13. She fell to the ground on her tummy at one point and you said words to the effect, 'It's time to pull your undies down'. You did so, pulling her pants and underpants down in one movement and slapping her on the bottom. She at the time laughed it off, but later, in your presence, she told her mother of the event. The mother brushed it off, no doubt thinking it was some childish game. It was only later of course that she was to learn that it was not a game involving the boy as well, just you and her daughter.
14. As to the second incident, though there is no absolute certainty on this point, it is likely that it occurred later that same day. It actually does not really matter. You took her to McDonald's. You stopped in at your house, telling her that you needed to get something or show her something. You told her you were going to show her something with Kim Kardashian. You knew that she loved Kim Kardashian. That was undoubtedly a device to get her in front of your computer, of that I have no doubt at all.
15. You then searched for a Kim Kardashian sex tape. What you then showed her, as she sat on your knee, was a Kardashian sex tape which showed Kardashian stroking a man's penis. Indeed each participant in the footage was touching the other's genitals, each were making moaning noises. She watched for about 30 seconds. She got down off your lap and sat against the wall, as she did not want to watch that footage. She then left the room, as she did not even want to hear the noises.
16. You later went to McDonald's with her and got some food and took her home. Though she mentioned the hallway incident to her mother, she was too embarrassed at that stage to mention the pornography incident. Well, that is hardly surprising; she was an 11-year-old girl.
17. Once the parents had a better understanding of the hallway incident, they confronted you. This was right back in 2013. You did not admit the conduct. What a shame you took that stance. Had you done otherwise, it would have been of great benefit to all concerned and maybe you would not be hearing these words spoken here today.
18. As I understand it from the materials, and this is not in dispute in any way, the parents took the not unreasonable decision that it was best for their daughter to see a psychologist to document the events but not to report the matter to the police at that stage. They thought that that course would preserve the ability for their daughter to later report to the police should she choose to do so when she was older.
19. She saw a psychologist back in mid-2013 and described the hallway incident. As she grew older, she then found herself able to describe the pornography incident. This she did in 2017, telling her mother about that detail. The decision was then made to contact the police. You were interviewed in December of 2017 and made a no comment interview, as was your right.
20. A committal was conducted in July of this year, where a number of witnesses were called, including the girl's mother and father. In fact as I said earlier, you had elected to take the matter to committal and then to trial. You were committed to this court, but an application was made for the discontinuance of proceedings, which was correctly rejected. The trial was listed to run some five to seven days.
21. Your defence response denied either of these two acts which at that stage founded the two charges of indecent act. Ms O'Brien was explicit as to that fact when she addressed me on Monday and I asked the question. The acts were in dispute, acts of course which you now at long last admit. So much then for my summary of the summary. That is all it is. I sentence in accordance with the full statement.

Victim impact statements

22. There are two victim impact statement in this matter, one from the 17-year-old direct victim and one from her mother. They were both read out aloud yesterday by the prosecutor, consistent with the wishes expressed in the documents. It is plain that your acts have had a significant impact on this young girl and on her mother. I am not going to descend to the full detail of the impact described, it is spelt out in the impact statements which I have read again overnight. The young girl was embarrassed about what had occurred, but she felt anger as well. It made her anxious and changed her attitude to visiting friend's houses and to things such as sleepovers. She became wary of people.
23. She was confused as to why she had the misfortune to be offended against. She experienced a loss of trust in people. Of course the court process has been stressful, at least confronting that prospect, and all that in the setting of her doing year 12.
24. Now, the VCE year is stressful at the best of times for anyone who reaches that year. It is not really possible for me to conclude that as a direct result of the crimes she went on to do an ‘unscored’ year this year, but no doubt though, the stresses of this sort of case hanging over her head would intrude deeply into her life and impact upon her efforts at study and her ability to give her best effort.
25. Her mother has watched on and seen her daughter's pain. She questions whether she did enough to protect her daughter. She feels some guilt. She should not. These were not her acts. It was not her fault they occurred, it was yours, Mr Light, and only yours. She grieves for her daughter's loss of innocence. Well, they are just a few of the sentiments in the impact statements placed before me. Of course I take into account the statements themselves and the impact of your crimes.

In mitigation

26. Ms O'Brien conducted an efficient plea on your behalf yesterday. She took me to your personal details and background. She relied upon a number of matters in mitigation including:
    • Your guilty plea;
    • The absence of any prior criminal history and the passage of time since this offending and what were said to be impliedly, your very good prospects of rehabilitation.
27. Your counsel placed before me four character references that were marked as Exhibit 2. She made submissions as to the level of seriousness of the offence and the weight to be given to the some of the purposes of sentencing in a case such as this. She argued that a prison term was not warranted here, nor even for that matter a community corrections order. She argued that you could be dealt with by way of a fine and she placed before me some details of your income and your assets and liabilities. She took issue with the making of a s.464ZF order to obtain a forensic sample.

Prosecution

28. The prosecutor Mr Slim made submissions on behalf of the Director of Public Prosecutions. It is important to understand that the Director of Public Prosecutions was not at any stage on the plea suggesting that a prison term, either one to be served immediately or one held in suspense, was the appropriate penalty here. Mr Slim, who appeared on behalf of the Director of Public Prosecutions of this State, submitted that it would be open to admit you to a community corrections order. No submissions were made one way or the other as to the availability of a fine in this case, but the truth is that possible disposition which was mooted by your counsel was not challenged by the prosecution.

Background

29. I turn now only very briefly to your background. I have no reason to doubt what I have been told of your family background, and your family background has nothing at all to do with this offending. You are 51 years of age, born on 20 September 1968. You grew up in the Wheelers Hill area, the son of Irish immigrants. You were schooled to Year 11. At around that time you met your wife to be, Sally, and you have been together for 34 years. Your 25th wedding anniversary beckons.
30. You worked in a bank for over 10 years, but for the last 23 years you have been a builder. You are a registered builder, you have your own company and it is plain from some of the materials before me that you are an excellent builder. Your wife works three days a week at a local Council. You have two sons, 19-year-old Hayden, who has an intellectual disability and autism, also there is 16-year-old Riley, who is, I am told, a gifted baseball player with some hopes of obtaining a scholarship to America. You have been associated with a baseball club and volunteer at that club.
31. There are four references from people who know you well and they speak highly of you and your contribution to the community and your efforts as a builder and father. Also as to their observations of you in their dealings with you. You have no criminal history at all and of course that is very important.
32. I turn then to consider the matters raised on your behalf.

Guilty plea

33. I turn firstly then to your guilty plea. You have pleaded guilty and in a setting where it was a word-on-word case, as mostly these cases are. Ms O'Brien submits, and I accept that it was, as she put it, a 'defendable' trial, so your plea is significant. I mean who knows how it would it have ended up had you gone to trial. I can tell you though that had you been convicted of the indictment offences after trial you would have gone to gaol.
34. You have though pleaded at a late stage. It is true that there were other more serious charges which have not proceeded, but your dispute was always with the happening of the acts, not how they might be classified. Well, that has now changed of course, but very late in the piece. Still your plea is important. We had, as she then was, the complainant waiting in the wings to give evidence on the special hearing on Tuesday of this week.
35. Given her age, she had been not called at the committal. She has now been spared the experience of being cross-examined. That is actually very important. Being cross-examined at her age really can be a very confronting experience. Even with all the advances we have seen in the use of closed-circuit TV, witness support persons, intermediaries and various other alternative procedures that we now have in place, it is still, from my observations as a Judge sitting in this court, often enough an upsetting event for a child to give evidence and one that has been totally avoided by your late change of tack.
36. Additionally, and this is important, it should not be forgotten by you or by others that by your plea you vindicate her completely. She went from being a complainant, that is someone complaining about an allegation, to a victim, someone who had been offended against by you. You admit now what you have never been prepared to admit until now: that you touched her in the way she says you did. You admit that you showed her the footage in the way that she says that you did. You admit that she is and always was telling the truth. She will take that away from this court if nothing else.
37. As late as the plea was, it is still then in my judgment highly valuable and I must reward you for your guilty plea; that is the law. You have facilitated the course of justice. You have at last taken responsibility for your offending. Witnesses have been spared the experience of coming to this court. The community has been saved the time, cost and effort associated with the conduct of an actual trial in this court. You also consented to the laying out of time, of the summary matter, so I take these various matters into account in mitigation.

Remorse

38. Your counsel made no submission as to the presence of any remorse and that is entirely understandable given the chronology placed before me. This was a pragmatic plea and I am not satisfied on the balance of probabilities that it is accompanied by any remorse at all. Nor did your counsel suggest that it was.

Rehabilitation

39. Your counsel argued implicitly that you have very good prospects of rehabilitation. You are a 51-year-old man with no criminal record at all: nothing before these events, nothing since. You have an impressive work record, also some very good references. It is to be noted that at least one of those referees (Ms Lind) was going to be called as a defence witness at trial and give evidence of your good character, evidence hence touching upon the lack of likelihood that you could have acted in the way you now admit that you did.
40. You must necessarily have not admitted to Ms Lind, the author of that reference, the happening of the acts until, at the earliest, Monday night of this week. There is then quite a strange aspect to the character references placed before me for that reason. You presumably have denied to all and sundry the happening of any of these acts for many years. Each of those authors would no doubt have said that they saw no hint of any untoward behaviour in their various dealings with you, including your interactions with young girls.
41. This sort of evidence would have been led as touching upon the lack of likelihood that you acted improperly towards the young complainant; that it was not likely that the person they knew could have done what was alleged. Well, now, you admit the acts. I am not being critical of the referees for writing what they have written, or for Ms O'Brien. You were close to having these witnesses called in a setting where you knew, and always have known, that you had actually committed the acts alleged. That is just the reality of this case. Still those references are of value and I take them into account. They speak of your qualities and at least their observations of you in more recent times.
42. You are a married man and you have family support. It is hard really for me to know what was going on in your life or your mind to motivate you to commit these offences against an 11-year-old girl and one who was in your charge. I am still totally in the dark on that score. You have lost your working with children card, as you should have, and people will know of the fact of your guilty plea. To get back the working with children card you may well have to satisfy the authorities as to a low risk, so there are those protections in place.
43. You have been stood down at the baseball club. As to other possible ramifications, you may run into insurance premium rises or issues with your building insurer. That is impossible for us to know. You may also experience difficulties in some overseas travel, to America for instance, if your son happens to get that scholarship, though Ms O'Brien did not suggest that there was any certainty that you would be impeded from travelling in that way. Nor was she suggesting that there was any basis to avoid conviction here.
44. So what lies ahead for you? What are your prospects of rehabilitation? My only reservation is that I am in the dark as to why you offended. However, there is certainly no particular reason for me to think that there is some high or even moderate risk of repeat behaviour. The laying of charges and the court process will also surely have had some role to play in deterring you. The delay since and absence of any subsequent offending or complaint suggests that you likely have a low risk of reoffending in this way again in the future. I believe then that you do have very good prospects of rehabilitation and a low risk of reoffence.

General remarks

45. Your counsel argues that this was a lower level example of both charges to which you have pleaded guilty and she sets out her reasons for making that submission both in her oral submissions and the outline of defence plea submissions. Well, of course I have to deal with you for these acts, and for these acts as they are charged. They were committed undoubtedly in that tight time frame and they were each brief acts. That is all accepted.
46. The written submissions though, it seems to me, totally overlooked the fact that you were in a position of trust at the time of each offence and you knew that you were. Now, of course this Court sees all manner of serious offending. The hallway incident is charged as a common assault. That is what I have to deal with you in relation to. There are many common assaults that cause some physical pain or harm. Well, this one did not. It was a reasonably short, sharp event. But what game were you actually playing?
47. Announcing it was time to pull her undies down and then doing just that, pulling down her pants and underpants in one motion and smacking her bare backside, and doing this when you were left in a position of trust at the time of that incident by her mother. Well, you obviously abused that position. Later, likely later that same day, you took this 11-year-old girl into your own home. It is plain that part of your purpose in doing so was to show her the footage. I am satisfied of that beyond reasonable doubt. It did not just happen out of the blue. You were mentioning Kardashian.
48. Again you were in a position of trust and again you abused that position. You knew that she loved Kim Kardashian. You mentioned that you would show her something with her idol. You then sought out the explicit footage. So you were thinking about your conduct. It was just not happening automatically. It was done by you deliberately and for a reason.
49. Nor is it to the point that this sort of material may well be available at the click of a button. Well, maybe it is; so what? You were the person clicking the button, you were an adult seeking it out and playing this footage in your home to an 11-year-old girl. Why? What was your interest in all of this? What business did you have in showing her that footage? It is unmistakably strange offending. To say it is an aberration does not explain the act at all.
50. Now, as I have said, I cannot sentence you for the offences of indecent act. They are not the offences to which you have pleaded guilty. But there is an unmistakable oddness to your conduct all those years ago. You were trusted and yet acted in this way, so each offence is accompanied by a breach of trust. It is that aspect which at least to a degree elevates the seriousness of the offending. For some instances of common assault of course there is no aspect of breach of trust. Well, there is here, and so too in the setting of the summary offence.

General

51. Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. As I have said, I believe they are very good. I must take into account the impact of your crimes and it has been quite significant, as you know. I must take into account the maximum penalty as well.
52. I must consider the need for specific deterrence, that is the need to deter you from committing crimes into the future. I think that purpose can be very significantly reduced here owing to my favourable findings. So too the weight to be given to community protection in this case. It would be very different indeed if you had relevant prior criminal history or relevant subsequent offending or I thought that there was some sizeable risk of reoffending, but of course that is not the position. Hence these purposes can be very significantly reduced indeed here because you have such good prospects into the future and I believe there is such a low risk of reoffence.
53. I must punish you justly and appropriately for the actual crimes you have admitted. I must also denounce your conduct. Denunciation is important enough here. You should actually be quite ashamed of yourself.
54. General deterrence is a significant enough purpose of sentencing given the age of the victim and the position of trust you assumed. That is the need to deter other people from this style of conduct. I must seek to deter others from conduct such as yours.

Current sentencing practice

55. I pay regard to current sentencing practices. That is something I must have regard to though it is not a controlling factor. I have had regard to the Sentencing Advisory Council SACStat online data for the offence of common assault, but statistics cannot drive this exercise. Common assaults can cover a large range of conduct of varying degrees of seriousness. There can be victims of varying ages; there can be injuries or physical hurt; there can be a breach of trust or no breach of trust; there can be an early plea and remorse or late pleas or even a guilty verdict following trial.
56. There is also of course the vast array of individual features of individual offenders. So statistics always have an inherent limitation. I have to sentence you for your crimes.

Ancillary order

57. Application is made for a forensic sample order under the provisions of 464ZF of the Crimes Act. The order was opposed by your counsel. In opposing the making of the order your counsel really did not go much beyond the bare opposition to it, but no doubt she relies upon the matters raised on the plea, being your age, your lack of history, lack of subsequent offending and a low risk of reoffence.
58. It is clear enough that the making of such an order does not follow automatically from a finding of guilt. I am required to consider the seriousness of the circumstances of the offence and I must be satisfied that in all the circumstances the making of the forensic sample order is justified.
59. This crime, and of course I am speaking of the common assault in relation to this application, occurred in the setting of a breach of trust committed upon an 11-year-old girl. The social utility of the order is also relevant to the exercise of my discretion, but it is not the only consideration. It is clear from the authorities that even where there was a minimal risk of recidivism, the gravity of an offence may be such as to justify the making of a forensic sample order. Having considered all the circumstances again overnight, including of course the level of seriousness of the offence, I judge that it is not appropriate to make the order sought by the prosecution, so I decline to make the 464ZF order.

Sentence

60. This brings me to my sentence. There is a sentencing hierarchy set out in the Sentencing Act. Unsurprisingly, prison sits at the very top of that hierarchy. It is always a disposition of last resort. It is reserved for those cases where none of the other non-custodial sentences can adequately achieve the various purposes of sentencing. By necessity one does not advance up the hierarchy further than is necessary to achieve those purposes in the given case.
61. Neither the Crown nor the defence are suggesting for one moment that prison is the appropriate outcome here. Each make submissions as to the appropriate non-custodial order open to me. Well, they are submissions or arguments placed before me, I am not bound to accept their view of my sentencing discretion. However, I happen to agree with the submission. Prison is not an appropriate outcome here given the nature of the offence and, very importantly, the fact of the plea. Nor am I convinced that a community corrections order is a sensible or available disposition here. It would have some obvious disadvantages for you, I am not too concerned about those, but it would have precious few advantages for the community. I cannot think of any actually.
62. I am not left with any sense that you need the supervision offered by such an order or that it would be a proportionate response to your offending. Of course if I had reached a view as to your having a higher risk of reoffence, or less favourable prospects of rehabilitation, well, perhaps such an order with appropriate treatment conditions might have been appropriate. But that is not the position I find myself in. I believe it is open to me to fine you for each offence as your counsel urges me to. I am going to record a conviction. It was not suggested that I had any alternative on that score and for good reason, and I plainly do not. I take into account as far as I am able to your ability to pay the fines imposed.
63. Stand up please.
64. On the charge of common assault I convict and sentence you pay a fine of $2,500.
65. On the related summary offence you are convicted and fined the sum of $2,500.
66. The amount of fines therefore total $5,000.

Section 6AAA

67. I have taken into account your guilty plea and I have discounted your sentences owing to that fact. The law requires me to take that stance. I am meant to tell you what would have happened had you gone for trial and been convicted. That is referred to by us lawyers as a section 6AAA statement. The making of such a s.6AAA declaration or statement is highly artificial here, as you could never have been dealt with at trial on these two matters. One is a summary matter. So making a declaration as to those matters is pretty much meaningless. A trial would have been fought out on the two charges of indecent act that had been laid on the trial indictment.
68. Had you been found guilty of the two charges I am dealing with following a contested hearing, I would have sent you to prison for a period of three months and I would have also imposed a community corrections order. Obviously it would have been a worse outcome than that had you been convicted on the trial indictment in relation to the two charges of indecent act. I hope I have made plain to you the weight that I attach to your guilty plea and significance of your victim being spared the experience of being called as a witness. It is those matters that spare you a term of imprisonment, Mr Light.
69. Have a seat, please. Are there any other matters?
70. MR PATHMARAJ: Not from the prosecution's perspective.
71. MS O'BRIEN: No, Your Honour.
72. HIS HONOUR: All right. That completes the matter then. I have got an appeal listed shortly, so I will stand down and come back onto the Bench. I will sign the formal order out the back, yes, thank you.

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