Director of Public Prosecutions v Ashley, Paul

[2012] VCC 1558

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-10-01570

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL ASHLEY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2012
DATE OF SENTENCE:	10 October 2012
CASE MAY BE CITED AS:	DPP v Ashley, Paul
MEDIUM NEUTRAL CITATION:	[2019] VCC 1558

REASONS FOR SENTENCE

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Catchwords: PG to one charge of gross indecency with child under 16; girl aged 11 – 12 at time; accused aged 23; offence occurred 22 years ago;  accused has led blameless life since; consistent employment and contribution to the community; fined $1500

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D O'Doherty
For the Accused	Mr T Lavery

HER HONOUR:

1       Mr Ashley, you can remain seated for the moment.  I will ask you to stand a little later.   Paul Ashley, you have pleaded guilty to one charge of gross indecency of a child under the age of 16.  This occurred in 1990 between June and November that year, when you were aged 23.  You were a friend of a family living in Swan Hill.  The complainant, aged 11 and 12 in that year, was one of several children in the family.

2       You were living and working in Melbourne at the time but visiting Swan Hill frequently and stayed with the  family. 

3       The complainant was sitting next to you on the couch in her family home watching television when you rubbed your hands on her leg.  You kissed her and you put your hand under her top but under her bra fondling her breasts.  That instance of sexual abuse gives rise to the charge on the indictment.

4       You did similar things to her on two further occasions, once again on the couch and a third time in her bedroom.  On this occasion she tried to move away from you and kept pushing your hands away.  The complainant's sister observed you on a later occasion lying under a blanket with the complainant.  Afterwards she confronted the complainant and told her she must tell her mother. 

5       The complainant and her sister told their mother the following day and you never went to their house again.  The matter was not reported to the police then and it was not until late 2007 when the complainant was engaged in counselling that she disclosed the abuse and later went to the police.

6       You were then interviewed by the police on the 23 October 2008.  Therefore 22 years have passed since the offending and it has now been four years since you became aware that the complaint had been made.  Both aspects of the delay are very significant and substantial weight must be placed upon them in the sentencing process.

7       The other matter of great weight is the fact that you have not offended in any way since then and have lived a blameless life being employed full time and raising two families, six children altogether.

8       I do not lose sight of the fact that the complainant has been profoundly affected by sexual abuse upon her at a young age, not only by your actions but by others as well.  Of course the specific effects of your actions cannot be ascertained and I take that into account in reasoning that there would have been some degree of cumulative effect upon her.

9       Your plea of guilty, although entered very late, has avoided the need for her to give evidence at a trial, a point  which she acknowledged in her victim impact statement.  She did however give evidence at the committal.  Despite that, the late stage of the plea does not preclude some discount applying because the inconvenience and expense of the trial has been avoided.

10      I also accept the plea as an indication of remorse and accept that you have expressed that to your counsel as well.  You have accepted responsibility for the offending, that it was wrong, and that you regret it.

11      While little information is to hand as to your early background it seems you grew up in a somewhat dysfunctional household with scant attention being paid to your welfare.  You left school early and started working and you have been employed full time as a truck driver and mechanic throughout your adult life.

12      Unfortunately you committed a number of dishonesty offences as a young adult as well as one charge of assault on a female - the charge only known to New South Wales law where it was committed.  You were released on a good behaviour bond.

13      Not only did you cease all contact with the complainant and her family but you never offended again and, indeed, you have in the past 13 years been a well-regarded member of the community in the town of Ballan.  Although, I have not been provided with any documentary evidence in support of this, I am told, and I accept, that you have served on the local CFA for 10 years.

14      Your second family comprises your wife and four children, including an 18 year old daughter who attended court today and three much younger school-age children.  The family has been extremely upset by the knowledge of this case and the uncertainty as to its outcome and I understand it has caused a great deal of stress.

15      You are now aged 45 and a very different person from the man who offended against the complainant many years ago.

16      At that time the maximum penalty for this offence was two years' imprisonment or a fine of 240 penalty units.  While it is generally accepted that such offences were dealt with more leniently by the courts then than they are now it is usually the case, as I remarked earlier, during discussion, that it is a futile exercise to try to ascertain how a sentence might have been determined at that time.

17      In any event the long delay, and your changed circumstances and demonstrated rehabilitation, avoid the need for that exercise to be attempted.  It is conceded by the prosecution that a prison sentence is not called for and that a fine would be appropriate.  Although the preferred position of the prosecution, if I can put it that way, is for a Community Corrections order to be imposed as well,  it was urged upon me by Mr Lavery, who appeared on your behalf that the rehabilitative focus of such an order makes it redundant in your case.

18      I agree with that.  You have no need of any of the programs or other resources which could be offered to you under a Community Corrections order and the obligations of performing unpaid community work would make it very difficult for you to pay the fine which should be imposed.

19      As to a fine, the passage of time presents difficulty in determining the appropriate amount, but taking into account your income and continuing financial obligations I shall impose a fine of $1,500 with a stay of three months.

20 If you had pleaded not guilty to the charge, I would have fined you $2,000. The prosecution seeks an order for a forensic sample to be obtained under s.464ZF of the Crimes Act.

21      I haven't asked you, Mr Lavery, for your instructions as to whether that is opposed or not or consented to as the case may be.

22      MR LAVERY:  What I say, Your Honour, is that consent is not given but the argument is a simple one and that is it's the 22 years argument.  That is really all I have to say on it, and that Your Honour will exercise your discretion. But the relevant factors are apparent, and I would say perhaps, further, Your Honour, that of course at the time of the commission of the offence, or thereabouts, if the matter had been prosecuted at that stage there were no such provisions.

23      HER HONOUR:  I take all those matters into account, including the nature of the crime and I think it is appropriate to apply current standards to this decision and accordingly, I will note that the application is not opposed.  Now, you said that is not consented to.

24      MR LAVERY:   Not consented to.

25      HER HONOUR:  Yes.  All right.  I will make that note but I will make the order.

26      MR LAVERY:  Fair enough, Your Honour.

27      HER HONOUR:  So, Mr Ashley, I must advise you that the police do have the power to use reasonable force to obtain the sample but I trust that will not be necessary.

28      The Sex Offenders' Registration Act applies in this case and you will have to inform the police of your whereabouts and other details every year for eight years.  You will be given a form to sign in that regard shortly.  Are there any other matters, Mr O'Doherty?

29      MR O'DOHERTY:  No, Your Honour.

30      HER HONOUR:  All right.  Mr Lavery, anything else?

31      MR LAVERY:  No, Your Honour. 

32       (At this stage the court proceeded with another matter.)

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