Director of Public Prosecutions v Paulson (a pseudonym)

[2016] VCC 1299

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALCOLM STEVEN PAULSON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 September 2016
CASE MAY BE CITED AS:	DPP v Paulson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1299

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	Ms R. Marques
For the Offender	Mr A. Lewis

HER HONOUR: 

1Malcolm Steven Paulson[1], you have pleaded guilty before me to two charges of unlawful and indecent assault of a girl and four charges of indecent assault.  The facts underlying your offending are as follows:

[1] Malcolm Steven Paulson is a pseudonym.

2Between 1976 and 1984 you performed various acts of indecent assault on both your biological daughter, Jenny Plank[2], who was born in November of 1970, and your stepdaughter, Angela Giffard[3], who was born in 1964.  The acts were committed within the homes your family shared in the Melbourne western suburbs.

[2] Jenny Plank is a pseudonym.

[3] Angela Giffard is a pseudonym.

3During the offending you were married to Ms Plank’s mother, with whom you had five children.  She, Lisha Paulson[4], already had five children of her own, one of whom was Angela Giffard. 

[4] Lisha Paulson is a pseudonym.

4Your counsel informed me that at the time you became involved with Lisha Paulson, you were not aware that she had any children until her youngest child, Angela, known as Angie[5], suddenly appeared at the home.  You never met any of the other children.  This is perhaps, to some extent, indicative of the sort of domestic situation both you and your victims found yourselves in. 

[5] Angie is a pseudonym.

5Charge 1 relates to an indecent assault upon your stepdaughter, Angela, when she was between 12 and 14 years old.  The family was living at a house in Glenroy.  That night you and your wife were drinking.  When friends went home, you invited Angie to have a pizza with you, which she found unusual because normally you paid her no attention.  It is presumed that at the time you were affected by alcohol.  Whilst sitting next to Angie, you put your hand inside her pyjama top and grabbed her left breast.  She gasped and jumped up.  You immediately apologised and asked her not to tell her mother.  You asked her again not to tell her mother and said that you would not do "it" again.

6Charge 2 relates to a second incident, by which time the family were living in Sunshine.  On one occasion you returned to bed when your wife had gone to use a phone at another house, the house in which you were living not having a telephone.  You encouraged Angie to wrestle you in bed whilst you were under the covers and she was on top and you rubbed your body up and down the front of hers during this wrestle.

7Charge 3 relates to a series of indecent assaults upon your daughter, Jenny Plank.  It is a representative count relating to five specific incidents of indecent assault.  Jenny was the eldest of your five children with Lisha Paulson.

8Between 1981 and 1982 the family lived in a house in Hobson Street, Newport which had two bungalows and an outside toilet, accessed from the veranda at the back of the house.  Jenny lived in one bungalow and Angie lived in the other.  One night, between 3 November 1981 and 1 November 1982, you and your wife were drinking with your brother-in-law.  Jenny was in bed and fell asleep but was woken by you, who told her to follow you as you walked towards a shed in the back yard.  Once inside the shed, you positioned yourself in front of the window looking back to the house.  You took off your belt and undid your jeans, pulling them down to your knees, telling Jenny that you had cramp in your legs and that rubbing them would make them better.  As Jenny rubbed your legs, you told her to rub higher, to which she replied "I don't want to do this", and you told her she must.  You made her rub your penis with her hand, saying "You're making it better.  That's good."  You continued to keep watch through the shed window towards the house during the incident.  You then told Jenny it would be your secret before sending her to the toilet and then to bed. 

9Jenny told her sister, Angie, about this the next morning, Angie telling her that she too had been sexually abused by you.

10You then began to regularly visit Jenny's bedroom and wake her during the night under the guise of getting her to go to the toilet so she would not wet the bed. 

11The first of these occasions was between 3 November 1981 and 1 November 1982 when Jenny was woken by you to go to the toilet, you wearing pyjama pants with an open fly.  You supervised Jenny going to the toilet, waiting outside the door and keeping watch of the rear of the house, then used the guise that you had cramp in your leg, telling Jenny to rub your leg before removing your erect penis from your pants and guiding her hand onto it and making her rub it.  Again, you told Jenny not to tell anyone and then sent her to bed.

12On one occasion in this period of time, between November 81 and 82, your wife was hospitalised with pancreatitis.  During this period you woke Jenny and told her to come to your bedroom.  She followed you there and you closed the door and sat on the edge of the bed.  You then instructed Jenny to come and kiss you.  She did this on the lips with a closed mouth, to which you replied, "Not like that.  Kiss me like a princess does."  Jenny said she did not know what this meant, so you told her to get into bed with you and then you removed your pyjama pants and underwear and asked her to rub your penis.  On this occasion you were more instructive towards her, telling her to rub it harder and faster, and eventually ejaculated into her hand.

13A couple of months later, after this incident, you returned to the complainant one night, waking her, getting her to come to the toilet and again making her rub your penis. 

14Finally, in that same period of time, by which stage the family was living at a house in Leicester Square, Seaholme, you waited outside the toilet until Jenny had finished, again mentioned cramp, and you made her rub your erect penis with your hand.  This took place outside her bedroom door.

15Charge 4, a charge of indecent assault, is also a representative charge relating to your daughter, Jenny.  This represents two separate occasions where you touched her on the breasts.

16Between November 81 and November 1982, on the occasion when you took Jenny to your bedroom, kissed her and instructed her to rub your penis whilst on the bed together, you also touched her on the breasts.

17Soon after, when the family had again moved, this time to a house in Marigold Avenue in Altona North, this was in 1984, you asked Jenny to come to your work with you at an abattoir where you were working a permanent afternoon shift.  On this occasion, between deliveries, you asked Jenny to sit on your lap as you watched television.  She was wearing a short-sleeved black top with embroidered flowers on each of the two breast pockets and you began running your finger around the embroidered flowers on her breast pocket and asked her if it felt nice.

18Charge 5, indecent assault, relates to an incident in summer of 1983 when the family was living in the Leicester Square house in Seaholme.  At this stage Jenny was sharing a bedroom with her younger sister Elizabeth.[6]

[6] Elizabeth is a pseudonym.

19Between November 83 and December 83 you came into her bedroom one night, wearing only underpants, and lay on Jenny, who was in bed wearing a nightie and underpants.  Jenny could feel your erect penis as you pushed it against the outside of her underpants, causing her pain, and felt the fabric of her underpants rubbing against her vagina, also causing her further pain.

20Charge 6, a charge of indecent assault, relates to the occasion when Jenny accompanied you to your work at the abattoir in Altona North, and she sat on your lap whilst watching television.  In addition to running your hands over her breasts, whilst Jenny was seated on your lap, you were moving and apparently obtaining sexual satisfaction from that action.

21You were arrested by detectives at your home in Burrumbeet at about 4.30 on 3 August 2015.  You were cautioned and a covert recording detailed admissions you made in regard to some sexual offending against Jenny. You were further interviewed that day at the Ballarat Police Station, where you made admissions to a number of indecent assaults on Jenny, involving rubbing your penis on the outside of your clothing.  You admitted to using a ruse about having a cramp in your leg, saying that you had done this many times, but denied that she ever touched your penis other than through your clothes.  You also admitted to passionately kissing Jenny.

22This matter was settled on the first day of committal.  Discussions were held, and the matter was resolved and you entered a plea of guilty on that day.  No witnesses were cross-examined in this case.

23In relation to the maximum penalties, the maximum penalty for each of the charges, given their age, is five years' imprisonment.

24I now turn to your personal circumstances.

25You are now 71 years of age.  The offending occurred when you were aged between 31 and 39.  You were one of four children born to your parents, and your father was a drover, who drove sheep from New South Wales to Melbourne.  Your father died, aged 75, in 1970 of stomach cancer.  Your mother has also died in 2003 in her eighties.  She had the occupation of home duties.

26You have no relevant prior convictions.  I do note there is a previous driving offence which I do not regard as relevant to the sentencing exercise before me.

27You have a sister who was aged 69 when she died, a second sister, aged 51, to whom you are close, and two brothers.  You have informed all your siblings of the offending with which you have been charged. 

28You left school partway through Year 8 when you were aged 16, at which time your father was sick with cancer.  You began working at Gilbertsons Meatworks in Altona as a drover, which job you held for 40 years.  Essentially your employment involved you taking stock off the trucks in which they arrived, counting them and putting them away in the abattoir. 

29You left home at the age of 19, soon marrying for the first time, and in the course of that marriage had two daughters, now aged 52 and 48, with whom you remain close.  That marriage lasted five years until you met Lisha, the mother of Jenny and Angie, with whom you had five children.  Of those children, two were daughters, a second daughter called Elizabeth, and three were boys, Casey[7], Robert[8] and Tad.[9]  You currently have good contact with Elizabeth but have no contact with your two younger sons, who both apparently have drug issues.  You do have contact with your son Casey, who is a stable foreman. 

[7] Casey is a pseudonym.

[8] Robert is a pseudonym.

[9] Tad is a pseudonym.

30You were 25 when you met Lisha and she was four years older.  As I said, when you began your relationship, you were unaware that she had children and it was only sometime later when Angie appeared at your home that this revelation was made to you.  You have never met any other of Lisha's children.

31It was clear from early in the relationship that Lisha had alcohol difficulties and in time it became clear that she was a chronic alcohol who was frequently hospitalised often because of attacks of pancreatitis, an alcohol-based disease.  It was a tumultuous and chaotic relationship.  You began to drink and eventually you too became alcoholic.  The two of you argued and fought regularly.  Lisha often left the home at times in the relationship, which lasted for 25 years.  Because of the frequent absences of Lisha, during which she sometimes took the children and sometimes did not, it was your calculation to your counsel that you had really only lived together for about six to eight years.  At times you were left in the care of the children, at which period you admit you were often neglectful of them because of your own alcohol problems.  You drank more and more.

32It was quite clear that in this terrible chaotic domestic situation, both Angie and Jenny became surrogate parents to the younger children.  Your mother would apparently come and help from time to time when Lisha was gone, but she had her own difficulties in caring for your father. 

33Jenny herself was ultimately made a Ward of State at the age of 13 and thereafter lost contact with her brothers and sisters and with you.  She was placed in essentially group homes and foster care.  It is clear, and this is very much to her credit, that she was able to undertake educational opportunities, which her siblings did not.  This may, of course, have been of particular advantage to Jenny, but I note in her victim impact statement that one of her major sadnesses in her life is the separation and subsequent distance from her siblings, the fact that she has gone down one particular path in life whilst they have gone down others, so that effectively she has not been able to re-establish the sort of familial relationship with her siblings that she feels she missed out on.

34Towards the end of your relationship you moved to Lal near Ballarat, at which stage you were about 49 years old, taking the two youngest boys with you.  Lisha apparently came to live with you at some stage, but by this time you had a formed a relationship with a lady, Elinor[10], to whom you have been married for almost 20 years and with whom you have been in a relationship for certainly that period of time.  You were at a particularly low ebb when you lived at Lal, as you lost your licence for drink driving, at which time you lost your job with Gilbertsons.

[10] Elinor is a pseudonym.

35I received a large number of references from family and friends, in particular your wife Elinor, who described your condition when she met you, which was one where you were depressed, unemployed and alcoholic.  It is clear that your marriage to her has been of enormous benefit to you. 

36I accept that from about the mid-1990s your life has steadily improved to the point that you now rarely drink.  You and Elinor live on a small acreage in Burrumbeet.  You drive a delivery van on a contract with Australia Post in the local area most days of the week.

37I accept that your offending occurred in the context of what could be described a hopeless and chaotic situation where you were alcoholic, where it would seem that you were unable to attend in any way properly to your children, and certainly were unable - particularly in terms of Angie and Jenny, that was anything other than a sort of self-indulgent outreach arising from the state that you were in.

38I accept that you have completely rehabilitated yourself and that it is highly unlikely that you would ever offend in this way again. 

39I also accept that you are sincerely remorseful for your offending, and I accept - and this is indicated in both the covert tape and in the record of interview - that the offending against your daughters is not something that you have forgotten about.  I accept that you have suffered considerable remorse about it over the years, and I also accept that you are not the sort of person who would have any idea about how to go about making amends for the enormous damage that you have done to both your daughters, and that damage is enormous indeed. 

40Angie did not make a victim impact statement, but your daughter Jenny did, and it makes for heartrending reading.  Despite all the advances that Jenny has clearly made in her life, it was evident that the enormously love-deprived, fearful environment she grew up in has wreaked a terrible toll in her life, but in particular the sexual abuse that you committed against her has done incalculable damage.  It is quite clear that Jenny has not sought to simply lay down and die, if I can put it this way, under the burden of the emotional damage done to her, and physical damage, as a child and that she has made vigorous attempts to overcome these early experiences. 

41However, as the court sees time and time again, the effects of sexual abuse are so pervasive, so longstanding and so deep, they present an immense challenge to anybody who has been the subject of them, and the capacity of people to move past that experience and overcome the incredible sense of betrayal, fear, low self-worth, trust in the world, all those parts of life that are very important for people to feel happy in their environment, are very damaged and take a great deal of time to build up again.

42Clearly your offending against Jenny affected her capacity to form relationships as she was growing up, she has ultimately married happily, and it is quite clear that she receives enormous support from her husband but feels immense guilt that this supportive happy marriage that she has is not sufficient for her to overcome the emotional difficulties that she has suffered ever since she was a child and much of which lie at your door.  I accept that even without the sexual abuse, Jenny would have had difficulties in her life.  You do not go through that sort of terrible ill treatment, neglect, fear, chaos and trauma and walk away, particularly if you have been separated from your family abruptly at the age of 13, which is a crucial age in the development of any young woman, but the sexual abuse makes it exponentially worse.

43Although Angie did not submit a victim impact statement, it is the experience of these courts over and over again about the damage that incestuous, because that is what it is, incestuous sexual offending against a child does to that child and to the woman that she then becomes.  I have no doubt that Angie in some way continues to suffer as a result of not just the horrible domestic environment you and Lisha provided for her, but the sexual abuse that she received at your hands.

44As I have said, I truly accept that you are sincerely remorseful for what you have done, and I also accept, as I have said, that you have completely rehabilitated yourself.  And I may be repeating myself, but perhaps I am doing so because Jenny is present in court and it seems to me an important thing that she understands that you do not have the inherent sophistication or emotional intelligence to take the steps to mend the damage, as best you can, that you have done to her.  It seems to me you have done what a lot of men in your situation have done. (I do note that many offenders against children do so in an utterly remorseless fashion, and unfortunately the more common experience of this court is that the main aim of the game, once these people are charged, is to get out of this offending and to drag whoever they can through the courts as much as they can, and it is very much to your credit that you have pleaded guilty, that you have made admissions to police and that you have made it in terms that I accept show a sort of bewilderment at your offending). 

45Unfortunately, the fact that there were circumstances surrounding your offending which make it more explicable in no way excuse it.  I accept that whilst you may have been truly remorseful, and remorseful for a period of years for your offending, I do not think you had the capacity to take the steps that you needed to take to approach your daughter and to in some way make recompense.

46Again, I keep emphasising that point because I think it is important in terms of Jenny's recovery, that at least she does have a father who is sorry for what he did, who has not dismissed his actions and gone on to lead a recovered life without any regard for you, his daughter.  I simply do not think, and this is a case with many people, he simply had the wherewithal or the intelligence, emotional intelligence to properly attend to the damage that he has done and probably would not have realised how damaging it was.  I note in the pretext call he said, "Well, Love, you know, I just hoped, you know, you'd moved on", and that probably would be his hope and about the best he could do. 

47One of the difficult things when one is facing childhood trauma is accepting that someone who has done very badly by you may, at the same time, have actually done the best they could and could do no more, because there is always the great hope or belief that they could have done more and should have done more, and that is part of the agony.  So it is extremely important to hear that, for what it is worth.

48In sentencing you, I take into account very much what I do regard is your true remorse which you have held for a number of years.  I accept that you have rehabilitated yourself.  I accept that there were circumstances surrounding you in your life when the offending occurred which no longer exist.  I very much take into account that you, from the outset, have been cooperative with police - not entirely, but in terms of admissions, that you pleaded guilty at an early opportunity, that no cross-examination was undertaken in relation to any witnesses in this matter, and you have saved them the trauma of cross-examination and the community the time and expense of a trial. 

49I also accept that at your age you have developed certain medical difficulties, mostly of a bronchial nature, and that at your age the service of a term of imprisonment would be much harder for you than it would be for the normal prisoner.

50I also take into account in sentencing you that the maximum term for that offending at the time was only five years in comparison with the much greater terms now imposed on persons for offending of that kind.

51Ultimately, after anxious consideration, it is my view that you are going to have to serve a term of imprisonment but that, because of the mitigating factors, it will not be as long as it otherwise would have been. 

52Those mitigating factors also include delay.  Delay is not an issue in these sorts of cases that it has in other cases.  It is very often the case that persons have offended horrendously against children many years previously and then gone on to conduct themselves in a perfectly responsible law-abiding way. However the authorities make it clear that in those circumstances the importance of a delay is still a factor.  But the fact that a court may be sentencing a person who presents entirely differently to how they did at the time of the offending, which is very much the situation in your case, is not a factor which has as much force as in other cases.

53In particular, in a recent decision of the Court of Appeal, Charlie Dalgleish (a pseudonym), the decision of the Court of Appeal, [2016] VSCA 148, at paragraph 43, the court stated:

"Society, the legislature and the courts are at one regarding the objective seriousness of sexual offending against children and of incest in particular."

54Now I break here to say that you are not formally charged with incest as you would be had you offended in modern terms, but insofar as the definition of incest is concerned, it involved sexual offending against your step-daughter and your natural daughter, and under the current legislation that does amount to incest.  I hasten to add that I do not sentence you as if you were charged with incest, but make that comment merely in order to make the point that this particular authority has application to this case.

55The court went on:

"Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their welfare."

56Could you stand up, please, sir.

57I, therefore, sentence you as follows:

58On Charge 1, you are sentenced to three months' imprisonment.

59On Charge 2, you are sentenced to three months' imprisonment.

60On Charge 3, you are sentenced to 18 months' imprisonment.

61On Charge 4, you are sentenced to six months' imprisonment.

62On Charge 5, you are sentenced to ten months' imprisonment. 

63The base sentence will be the sentence imposed on Charge 3, 18 months.

64I order that three months of the sentence imposed on Charge 5, two months of the sentence imposed on Charge 4 and two weeks of each of the sentences imposed on Charges 1 and 2 be served cumulatively to the sentence imposed on Charge 3 and all other sentences.

65This gives a total effective sentence of two years.

66I order that 20 months of that sentence be suspended for a period of three years.  That means you will serve four months, sir.

67Now I have no doubt that the service of a sentence of imprisonment will be extremely difficult for you.  May I say that had this offending not occurred when it did, had you not shown the remorse and rehabilitation that you have, in current terms you would be serving a great deal more gaol than you will be on this occasion.

68Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and ordered that you serve a minimum term of two years. 

69Thank you.  Yes, have a seat, sir.

70MR LEWIS:  Your Honour, I made a note of sentences on Charges 1 to 5.

71HER HONOUR:  Yes.

72MR LEWIS:  I didn't make a note of Your Honour's sentence on Charge 6.

73HER HONOUR:  Charge 6.  I didn't impose a sentence on Charge 6.  Yes, all right. 

74That will also be a term of three months, and I will order that two weeks of that be served.  So that is a total effective term - it will be added cumulatively - of two years and two weeks, and I order that 20 months and two weeks of that sentence will be suspended.

75MR LEWIS:  As Your Honour pleases.

76HER HONOUR:  Which will mean a four month service, all right?

77MS MARQUES:  Your Honour, just one other matter, if I could raise it, please.  Just that my instructions are on charges - after being sentenced on one and two, he is to be charged as a serious sex offender on the remaining charges.

78HER HONOUR:  Yes.

79MS MARQUES:  But no disproportionate sentence is sought.

80HER HONOUR:  No.  I do declare that he is to be sentenced as a serious sexual offender, but there is no disproportionate sentence sought and that the sentencing cumulation will be carried out in the terms that I have ‑ ‑ ‑

81MS MARQUES:  As the court pleases.  The reporting period, Your Honour.

82HER HONOUR:  Pardon?

83MS MARQUES:  The reporting period.

84HER HONOUR:  The reporting period?

85MS MARQUES:  Yes.

86HER HONOUR:  He's placed on the sex offenders register.

87MS MARQUES:  Correct.

88HER HONOUR:  How long for, please?

89MS MARQUES:  Life, Your Honour, my instructions.

90HER HONOUR:  Yes, that is mandatory.

91MS MARQUES:  Yes, that's correct.

92HER HONOUR:  You will be placed on the sex offenders register for life. 

93I should also add, which I failed to do, is that in finding that you are remorseful, I note that everyone who wrote references on your behalf had been told of your offending and fully of your offending.  That included, as I have said, one of your daughters and all of your siblings.  Again, that is much to your credit, and again, vastly different to the general experience of this court where no-one is told and everything is resisted.  Thank you very much.

94MR LEWIS:  I wonder, if I may, Your Honour, in relation to custody management, could I ask that ‑ ‑ ‑

95HER HONOUR:  Yes, what's the custody management issue?  Thank you.  Yes.

96MR LEWIS:  Your Honour, I tendered during the course of the plea a summary of the medication that my client is currently on, and I would ask that a copy of that be - I can provide a copy.

97HER HONOUR:  Can I give that to you now, sir?

98VOICE (from body of court):  Yes.  He will see a doctor this afternoon ‑ ‑ ‑

99HER HONOUR:  All right.  Can we give you the list of medications?

100VOICE (from body of court):  Yes, certainly.

101MR LEWIS:  I will take that to the dock, Your Honour.  Thank you, Mr Tipstaff.  Could I ask that Your Honour make a - recommend - well, I have heard from the back of the court that my client will be seen by a doctor this afternoon and ‑ ‑ ‑

102HER HONOUR:  Yes, he will be.  He'll be going to the MAP.

103MR LEWIS:  Yes.

104HER HONOUR:  And he will be assessed and classified there.

105MR LEWIS:  Yes.  In those circumstances, it seems that it's probably unnecessary for Your Honour to make an order or to make ‑ ‑ ‑

106HER HONOUR:  I can't.  I ‑ ‑ ‑

107MR LEWIS:  To make a direction or anything like that.

108HER HONOUR:  I cannot make a direction on it.  I can just make sure, and of course you can go down to the cells and make sure, that that has all been followed through.

109MR LEWIS:  Yes.  Thank you, Your Honour.

110HER HONOUR:  Is there anything else that I need to attend to?

111MS MARQUES:  No, Your Honour.

112HER HONOUR:  I have just got to print out the sex offenders - the conditions of which will be explained to you, sir.  Thank you very much. 

113Yes, thank you.  Could I also make the comment that counsel were extremely helpful.  You did a terrific plea, Mr Lewis, I couldn't have asked for more.

114MR LEWIS:  Thank you, Your Honour.

115HER HONOUR:  I got all the information that I wanted, and I thank you for it.

116MR LEWIS:  Thank you.

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