Director of Public Prosecutions v Little (a pseudonym)

[2016] VCC 571

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK LITTLE (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 May 2016
CASE MAY BE CITED AS:	DPP v Little (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 571

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N Batten
For the Offender	Mr M Gleeson

HER HONOUR:

1Mark Little[1], a jury has convicted you of two charges of sexual penetration of a child aged 16 or 17 who was under your care, supervision or authority.  The facts underlying your offending are as follows.

[1] A pseudonym

2The victim, Megan Hinton[2], was the girlfriend of Oliver Hadley,[3] aged 18, the son of your former partner who had come to live with you in order to better access a trade school where he was studying plumbing.

[2] A pseudonym

[3] A pseudonym

3You lived in a house owned by your mother, together with your son, Carl[4], Oliver’s half-brother, whom you had raised on your own since he was a baby.  Oliver had been living with you for some months after both you and your mother agreed he could live there.

[4] A pseudonym

4In that time Megan often visited the home, occasionally staying overnight and sleeping with Oliver, unbeknownst to her mother, who would not have allowed it, but known to and clearly assented to by you.

5On Friday 24 February 2012 Ms Hinton, the complainant, went out with Oliver Hadley, you, and others for a family 21st birthday dinner at a nearby hotel and stayed the night with Oliver in his bedroom, which was next to yours.

6The next morning the two of them had sexual intercourse and watched TV before getting up.  Megan Hinton was then 17 years and seven months' old.  You were aged 46.  Oliver was going to Crown Casino to continue the 21st birthday celebrations with his cousins and there was a discussion as to how Megan would get home.  You are a plumber and offered to drop her home as you said you had to do a quote at an address near her house, if she could wait half an hour.

7Megan said in evidence she felt uncomfortable accepting this offer but did so at the urging of Oliver and your nephew, who then left the house.  Megan then sat on a couch watching Foxtel on the TV in the back lounge area of the house.  You sat next to her and changed the channels on the TV saying you had heard she and Oliver that morning, which Megan took to be referring to her and Oliver having sex.

8She apologised and you said, "No, I liked it," and said that you had turned down the volume "to make sure".  You then asked Megan what her deepest, darkest secrets were and then spoke of once having a "threesome" with your former wife and a friend of hers, and asked Megan if she had ever done this, to which she replied, "No."

9You said that a friend of her was pretty and asked if Megan or her friends would go for an older man like him.  You then told Megan a story about having a sexual relationship with a friend's mother when you were 15.  Megan said she felt intensely uncomfortable throughout these conversations, which she coped with by giving short answers, steadfastly watching TV and continually smoking.

10At one stage you left the room in order to answer a phone call and on return told Megan she now had to tell you her deepest, darkest secrets, as you had told her yours, to which Megan made no reply.  She then said she needed to go to the toilet, at which you said, "Do you want a hand?"

11In the toilet Megan debated about what to do and feeling helpless returned to the lounge room.  You then put on a pornographic film, suggesting that you and Megan "touch each other", Megan saying no, that she did not feel comfortable to do that because of Oliver.

12You then said there was nothing wrong as the two of you would not touch each other and Oliver would not know.  You promised on your son, Carl’s life that you would not touch her.  You asked Megan if she "liked girls", to which Megan replied no.  You asked what her favourite sexual position was and told her what yours was.

13At this time Megan could see from the corner of her eye that you had your hands down your tracksuit pants.  You then went to your room, saying you needed cream.  On the return you sat on the couch, spreading your legs and asking Megan to come and sit between them, which she refused to do.

14You then applied the cream and began masturbating yourself, moaning and calling out Megan’s name.  Megan kept her gaze ahead, but looked over quickly at one stage and could see that you were masturbating.  She that as you masturbated you also made other sexual comments such as wanting to lick her all over, which Megan said made her feel sick.

15You began asking Megan a number of times to take off her shirt, to which she replied no.  Eventually you asked her to take off her bra, saying it would make you come "easier".  Megan said she gave us and took off her bra under her singlet top.  You then asked her to take off her top with Megan consistently replying no, until you ordered rather than asked her to.

16At that stage she complied saying in evidence that she was scared that you might hurt her if she did not.  Megan said that the night before in a conversation back at your house where a number of people went after the 21st dinner you had spoken about Oliver’s mother in angry terms, saying that you would kill her if she did certain things.

17Megan in evidence said she remembered this and it made her think that you might hurt her if she did not comply.  You then asked Megan to take off her shorts.  She kept saying no, then again you told her rather than asked her to take them off, and again she complied.

18You then walked over to her, put a hand on her leg and began masturbating in her face.  At this time you still wore your shirt and your tracksuit pants were pushed underneath your testicles.  You pressed your forehead against hers as you were masturbating and kept talking sexually to her.

19You then told Megan to stand up, to which she said no, but you put an arm beneath her leg and pulled her up, at the same time pulling down her underpants and inserted your penis in her vagina.  These actions underlie Charge 1 on the indictment.

20Megan said that after you had thrust a few times in that position she managed to push herself backwards and fall on the couch.  You managed to penetrate her almost immediately but were unable to keep your penis in for barely five seconds.

21You then got Megan to walk to your room, you guiding her with your hand on her back.  She was naked at this stage and you were still dressed in tracksuit pants and a shirt.  Asked why she went into your room Megan at transcript p.79 replied, "I froze.  I was scared of what would happen if I tried to get out of that situation."

22You then asked Megan to sit on your bed and she did so and shuffled backwards until she could go no further thinking that, "The sooner this is over the sooner I can go home".  (Transcript p.80)  You got on top of her and inserted your penis in her vagina and began thrusting in and out.

23You asked Megan during this if she was okay and she nodded yes.  You then pulled out your penis and ejaculated on her stomach.  These actions underlie Charge 2 on the indictment.

24At this point you heard your mother returning from her regular bingo game and quickly went out while Megan ran to Oliver’s room where she dressed in clothes that you threw to her which you had retrieved from the lounge room.  You got Megan to your car without your mother seeing, getting her to duck down as you reversed out of the driveway.

25You then drove her home telling her not to speak to anyone about what had happened saying, "This is our little secret."  Megan told no-one about what had happened to her until she was at school on Monday 27 February.

26You were interviewed by police on 1 March 2012.  In that record of interview you claimed that as you and she watched TV Megan began rubbing her breasts, essentially seeking to initiate sexual contact with "an older bloke".  You said to police that the two of you ended up in your bedroom where Megan apparently asked to felate you, you mutually masturbated and you then ejaculated upon her.  In other words, your version to police was one that no sexual penetration took place and two, that whatever took place between you was initiated by Megan.

27I now turn to your personal circumstances.  You are now 51 years of age.  You had a stable upbringing and you have two sisters, one of whom has died.  Your father, who worked in the drainage industry, died when you were 16.  You left school at 15 and completed a four year plumbing apprenticeship, which you have worked in ever since, both as a sub-contractor and running your own business.

28You married at age 20 which marriage ended amicably after two to three years.  At age 29 you formed a relationship with Carl’s mother.  She had mental health issues and you separated when Carl was three months' old, ultimately being awarded sole custody by the Family Court, and have raised him since as a sole parent.  He is now 15.

29You took five years off work to care for him, moving in with your mother, now aged 73, and have lived with her and Carl ever since until you were remanded in custody on the jury bringing back guilty verdicts in relation to these charges.

30You have been much involved in sporting clubs, for example, coaching for many years at a Primary School basketball team, and overall I accept that your history reveals a hardworking man with a solid employment history who has shown particular responsibilities as a sole parent to his son, Carl.

31I received a number of written references from friends and family attesting to your hard working nature and devotion to your family.  In 1991 you were placed on a good behaviour bond for cultivation of a narcotic plant, a prior matter that I regard as irrelevant to the sentencing exercise before me, otherwise you have no prior or subsequent criminal history.

32There has been some delay in this matter.  On 21 September 2013 you were charged with two counts of rape, indecent assault and false imprisonment and were committed on those charges after a contested committal was conducted on 14 March 2014.

33In January 2015, six to eight weeks before this trial was due to begin, you were directly indicted on the charges on the indictment, that is the two charges of sexual penetration of a child in your care, supervision or authority.

34The trial began on 16 March 2015 where a pre-trial ruling was challenged by interlocutory proceedings in the Court of Appeal.  The matter was adjourned then to 24 April and then to 15 May.  The pre-trial argument took place in March, and then on 15 May was further adjourned for mention pending a further appeal to the High Court in order to challenge the ruling of the Court of Criminal Appeal on the interlocutory matter.

35The matter was then adjourned for mention to September and on 18 September 2015 at mention the court was advised of the High Court's refusal to grant leave to appeal and the trial was fixed for 1 February 2016 where it commenced, a verdict being returned on 11 February 2016.

36Really the only delay which has not been contributed to by you, Mr Little, has been the delay between you being interviewed by police and you then being charged.  All the other delay is the result of the course that you took in resisting the charges, a course that you were perfectly entitled to take, but which means that the issue of delay has far less impact as a mitigatory factor than it otherwise would have.

37The maximum penalty for this charge is ten years' imprisonment.  I am satisfied that your offending had a very grave effect upon your victim.  She was undertaking Year 12 at the time, the most significant year of study at secondary level.

38In her victim impact statement Ms Hinton stated that before the offending she attended school every day, wrote and played music and hoped to undertake a tertiary course in that area.  She felt confident and happy and enjoyed her friends.

39She said she was previously a "really strong person mentally and physically", but that after your offending against her she felt "weak and little".  She felt isolated and distant from her friends and family and I gathered from some of the evidence that Ms Hinton gave in the trial that there was an amount of criticism from her own family about her failure to get herself away in the circumstances, and of course I do accept that as a result of your offending her life changed drastically and her relationships with family and friends very much fell off, and that she found it difficult to be around anyone.

40Her attendance at school dropped off to the point that she could not complete her end of year exams and failed to gain an ATAR score, which was probably a catastrophic end to her Year 12, and as she said, radically reduced her options for further study.

41She spoke of continuing to suffer nightmares and flashbacks on a regular basis.  She has been in a relationship for three years and has two children, but spoke of the effect that your offending has had upon the physical relationship between herself and her partner.  She has never been able to return to playing piano, singing or music again.

42The way in which she described it was that she has "flashbacks of what happened and my feelings of vulnerability" which continue to bedevil her life.  She found the court proceedings extremely difficult as they were a constant reminder of your offending and felt that she was being "continually questioned and judged in the process".  She stated, "It's like what happened has become my whole life for so many years."  She also mentioned how hard it was for her to move on with her life "with this shadow constantly over me".

43Your counsel submitted that I should deal with you by way of a wholly or partially suspended sentence, an option which is still open to me due to the date of your offending.  Alternatively it was suggested I should deal with you by way of a partially suspended sentence or by you being placed on a community corrections order, or by my imposing a sentence comprising a term of imprisonment and a community corrections order, which I have the power to do.

44Those submissions were based on your previously mostly unblemished history which I had indicated I am satisfied was a hardworking, law abiding one, marked by devotion to your family, and I accept that you have excellent prospects of rehabilitation and that the chances of you re-offending are probably low.

45The prosecutor however submitted this was a serious example of a serious crime involving a high degree of moral culpability and a high degree of responsibility. He referred to the following considerations, they being that your offending was a single but prolonged incident, that there was a substantial age disparity between you of almost 30 years, that the incident was pre-meditated, that is that your conduct involved taking positive steps in order to ensure that Megan was on her own, that is that she was deliberately isolated in order for you to sexually exploit her, and indeed this was the scenario opened by the Crown in this case.

46Further, he submitted that the offending involved abusive acts prior to the offending actual penetration, that is sexualised conversation, the showing of pornographic film and masturbation, which were aggravated features of this offending, that there was persistence in the face of verbal resistance, that there was a sustained emotional pressure of authority to exploit the vulnerability of Ms Hinton and facilitate the offences, that there was an absence of consent to sexual penetration which aggravates it.

47The authorities he relied upon for that proposition were  
R v Clarkson (2011) 32 VR 361 and R v Sulemanov (2007) VSCA 288. Further aggravating your offending was that the sexual penetration was unprotected, bringing with it a risk of sexually transmitted disease and pregnancy (see R v Szeto (2012) VSCA 155). You ejaculated onto her body which aggravates and increases moral culpability again (see R v Szeto), together with the instruction to maintain secrecy.

48It was the prosecutions submission that the victim impact statement demonstrated distress at the time of the offending and in the aftermath, distress at repeatedly having to give evidence, prolonged and continuing emotional trauma, prolonged loss of enjoyment of life, for example, music and interference with the relationship with her partner, emotional impact, harmful to relationship with partner, adverse impact on Year 12 performance, feelings of guilt for the offence.

49The way in which the prosecutor put it in summary, was that in your offending you subjected Ms Hinton to a prolonged incident to which she responded with confusion, embarrassment, humiliation and impotence in the process, suffering distress, fear, finally resignation and then ultimately guilt, which it is clear from her victim impact statement she carries to this day.

50She still, it appears - and this is something the courts see all the time where victims of sexual abuse continue to blame themselves - she feels guilty for not having stopped you, Mr Little.

51I agree with the characterisations described by the prosecution.  It is frequently the case that those convicted of sexual abuse of children, (and Ms Hinton was specifically termed a child at law for the purposes of this offending,) have the sort of admirable contributing crime free histories that you present with.

52The need to protect children from sexual exploitation, the recognition by Parliament of the great damage it does, however have led to the mitigatory features of previous good character, solid work history, community involvement and the like, to have less effect in cases such as these which involve the exploitation of children.

53The authorities have made it clear that s.48 is designed to protect vulnerable adolescents from sexual exploitation by those in authority who have the power to influence their victims in this way and to punish those who do so.

54In other words, this charge is specifically designed to protect children from sexual exploitation, and those who like you may seek to take advantage of their position of authority.  In my view for the reasons espoused by the prosecutor I do accept that this is a serious example of a serious crime.

55Nor have you shown one shred of remorse.  This case has been resisted by you from the outset at every level.  Ms Hinton has been subjected to repeated and traumatic cross-examination at both committal and at trial.  In my view the dominant sentencing principles to which I must have regard are just punishment, specific deterrence, general deterrence and denunciation of your conduct.

56I make the point, Mr Little, that you may have been a very devoted father to your son, Carl, but I wonder how you would have felt if another adult, another parent, had behaved towards Carl the way you behaved towards Ms Hinton, who is, after all, someone else's child. Ultimately, in my view those principles can only be properly effected in this case by the imposition of a term of imprisonment to be immediately served.

57Can you stand up please, sir?  On Charge 1 I sentence you to two and a half years' imprisonment.  On Charge 2 I sentence you to two and a half years' imprisonment.  I order that 18 months of Charge 2 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of four years, and I order that you serve a minimum term of two and a half years before becoming eligible for parole.  Have a seat please, sir.

58How many days of pre-sentence are there please?

59MR BATTEN:  Eighty-four days, Your Honour.

60HER HONOUR:  I declare that 84 days of this sentence have been served by way of pre-sentence detention.  Thank you.

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