Director of Public Prosecutions v O'Doherty

[2016] VCC 936

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00626

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL ANTHONY O'DOHERTY

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April & 4 July 2016
DATE OF SENTENCE:	4 July 2016
CASE MAY BE CITED AS:	DPP v O'Doherty
MEDIUM NEUTRAL CITATION:	[2016] VCC 936

REASONS FOR SENTENCE

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Subject:Trial – sentencing

Catchwords:             Common assault

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:                  Without conviction, fined $1500

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Accused	Ms G. Morgan	Doogue O’Brien George

HIS HONOUR:

1. Paul O’Doherty, you have been found guilty by jury verdict of 1 charge of common assault.

2. This offence carries a maximum penalty of 5 years’ imprisonment
3. You are currently 53 years of age, having been born on 28 May 1963, and you were 50 when you committed these offences in April 2014.
4. You have no criminal record.
5. The circumstances of your offending occurred in the context of excessive parental discipline.
6. There was an argument with the victim, your step daughter, over whether she should be washing clothes at a time when you considered she should be in bed.
7. The argument became heated, you accused her of lying to you and in the process hit her across her head. The impact of your strike forced her head into a mirror.
8. You admitted this assault in your record of interview and in evidence in court you accepted that you had ‘whacked her … she lurched forward and her head hit the mirror’. You also said that you regretted what you had done, felt ashamed and realised that you had overstepped the mark.
9. There is no evidence that the victim suffered any particular injury beyond pain.
10. As to personal background: you have no history of prior offending and you are a mature adult aged 53 with a stable and highly responsible employment record as a commercial airline pilot. Character reports tendered and the evidence of        Mr Courtenay-Pratt refer to your otherwise good character. A report from psychologist Mr Merritt refers to your own background when young of being the recipient of violence as inappropriate response to conflict.
11. You have received counselling as to appropriate responses to conflict and developed insight as to the cause of the outburst that brought about this offending.
12. This act was an inappropriate act of parental discipline against a child which justifies your feelings of embarrassment and regret. It constitutes a class of domestic violence which the community deplores and courts are expected to denounce. 
13. In mitigation, I accept that the offending occurred in the heat of the moment, late at night when tempers were already frayed, and that despite your admission of being a disciplinarian who would occasionally administer “a whack”, the degree of punishment was out of character, and that you have no previous history of violent offending.
14. Your counsel has submitted that in the circumstances, particularly as regards your employment, the recording of a non-conviction would be open.  The prosecution submits that a conviction is necessary in light of the violence of the act which was more than a slap and where the victim was a vulnerable child in your care.

15.In exercising the discretion, I must have regard to various matters including sections 5 and 8 of the Sentencing Act 1991 and all the circumstances of the case, including the nature of the offence and the character and past history of the offender and also the impact of the recording of a conviction on the offender's economic or social well-being or on his or her employment prospects.

16.Whilst in your case it remains speculative as to whether or not the fact of the conviction is likely to directly affect your employment, the impact of a conviction on an offender's economic or social well-being has a wider context.  Various persons in authority having an interest in the record of a conviction include potential employers or insurers, financial institutions and various government departments including the Immigration Department, not only of this country but of other countries, as to whether visas are provided or not. The simple note of a record of a conviction does not provide details of the whole of the circumstances and unfairness can result in punishment for the offence beyond the sentencing purpose and intent.

17.In the current circumstances, taking into account all of those matters that I have mentioned, I intend to exercise my discretion not to record a conviction. In my view a significant fine will appropriately reflect the sentencing considerations of denunciation, punishment and deterrence.

18.Mr O’DOHERTY, could you now please stand.

19.On Charge 2 of common assault on Indictment E13771793.2, you are sentenced, without conviction, to a fine of $1500.00. I also order a stay on the payment of 30 days.