Director of Public Prosecutions v Cocking

[2017] VCC 1812

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

AT BALLARAT
CRIMINAL JURISDICTION

CR-17-01191

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARRELL COCKING

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2017
DATE OF SENTENCE:	30 November 2017
CASE MAY BE CITED AS:	DPP v Cocking
MEDIUM NEUTRAL CITATION:	[2017] VCC 1812

REASONS FOR SENTENCE
---

Subject: CRIMINAL LAW
Catchwords: Sentence – indecent assault on a male person
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Criminal Procedure Act 2009 (Vic).
Cases Cited: Ibbs v R [1987] HCA 46, R v Rumpf [1988] VR 466, R v P J B [2007] VSCA 242.
Sentence: Total effective sentence of 2 years imprisonment wholly suspended for a period of 3 years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public
Prosecutions	Mr P. Bourke	Office of Public Prosecutions
For the Accused	Ms G. Nehma	Lewenberg & Lewenberg Solicitors

1HIS HONOUR: Mr Cocking is aged 82. These offences occurred when he was between the ages of 22 and 24. The victim in this matter was aged nine to 11. The indictment is numbered F14123923C. The four charges are charges of indecent assault of a male person under the age of 16, contrary to s.68(3) of the Crimes Act 1958 (Vic) as it then was. The penalty imposed for such offences is one of ten years.

2The offences are detailed as being four occasions between the period 1 January 1958 to 31 December 1959. They are course of conduct charges in each instance, as defined by clause 4A of Schedule 1 in the Criminal Procedure Act 2009; such course of conduct charges being introduced in 2014.  Those charges, given the determination by the Parliament that there was no breach of human rights in making such retrospective, applicable to Mr Cocking’s sentence.  It is to be noted, that a course of conduct indictment was not sought in any of the other indictments concerning Mr Cocking, that I have dealt with or that have been before this Court.

3Whether it was a wise decision to do so, in this case, is obviously not for this Court to decide; however, it was done.  As I say, the four occasions detailed in such time period involved two occasions when Mr Cocking rubbed the anus or around the backside of the victim, that is the first two charges.  The next two charges relate to fondling of the penis of the victim, including the testicles and thighs.

4Insofar as there being a course of conduct charge in each charge, s.5(2F) of the Sentencing Act 1991(Vic) is therefore applicable and the Court must impose a sentence which reflects the totality of the course of conduct. 

5Exhibit A was the summary tendered to the Court.  The details are similar to the earlier matter that I sentenced Mr Cocking on; that is, he was a visiting music teacher.  At the time, the victim lived with his family on a farm in a remote farming area in western Victoria.

6The victim attended the local primary school and received piano lessons from the accused.  He commenced receiving those lessons at about nine and ten and the prisoner was somewhere, as I said, between the years 58 and 59.  The lessons took place over a period of about 18 months.  They were held more frequently than monthly, likely fortnightly, and lasted about 45 minutes. 

7Some months into the lessons, Mr Cocking placed his arm around the child, as he then was. Subsequently, he recalls the next occasion being sat next to and having his buttocks rubbed; that is, the buttocks being rubbed inside the pants.  Such makes up the course of conduct matters, as I have already detailed in Charges 1 and 2.  In the course of conduct matters, Charges 3 and 4, the hands were moved to the front of the pants, with Mr Cocking rubbing the child’s thighs, penis, and testicles, as I have detailed.

8Apparently, when one takes into account the age of the child, Mr Cocking apparently said in regard to the offending, which apparently began about 15 minutes into each lesson and lasted about 15 minutes, after he had stopped, he asked whether “it was okay” - “Do you mind me doing this?”  The young child would in fact respond, “No.”  The victim advises now that he always felt uncomfortable with what the accused was doing.  Once he had progressed to the fondling of the penis, he would assault him in the same way in each lesson, until those lessons stopped.

9The lessons stopped abruptly, the victim does not know the reason.  At no time did the victim tell his parents about these matters.  The victim thereafter went on with his life.  He qualified as a social worker.  One night he was travelling home and started to cry uncontrollably – this is when he was in England – because the experience of a child that he was attending reminded him of his own circumstances.  That night, for the first time he told his wife and, the following morning, his boss.  Those discussions are detailed and I will not go over them again.

10The victim in fact wrote to his father, who said he had no inkling of what had transpired.  Unfortunately, by the time he next saw him in 1999 – that is, his father – his father had problems with dementia onset.  In the summary was set out the various details and the original record of interview involved a total denial. 

11The Crown also tendered Exhibit B, which was a victim statement.  The statement seems to me to indicate impacts that are totally consistent with the circumstances of these crimes.  The victim said that the abuse he experienced has bothered him all his life. It impacts on him, especially in his own role.  He states that “Even though these events were 60 years ago, they haunt me to this day.”  I think accurately they were about 58 years ago.  He said further that he feels that the crimes have had an impact upon him in regard to his ability to trust people, as he indicates - even with his own training - that it is difficult to describe what impact sexual abuse has on you as a child, albeit that he says in his statement that it continues to affect his mental health and wellbeing.

12The victim says that from time to time, he becomes quite depressed about the experience and he is hoping that the closure of this matter would be of assistance to him.  I do not know anything more about the circumstances in the victim’s life, so I only take those matters as they are put.  And as I said, there does not seem to be anything inconsistent in those matters and nor was it suggested by counsel on behalf of Mr Cocking that there was anything appropriate in those matters.  As I say, it was not reported by the victim until those circumstances came about in 1991.

13Ultimately, Mr Cocking was confronted with the crimes and, as I said, in his record of interview in November 2014, totally denied such.  Mr Cocking comes before the Court, with no prior offences whatsoever.  However, he does have subsequent offences.  On 15 October 2010 in the Ballarat Magistrates’ Court - he was sentenced for five offences of indecent assault on a male, who was 13 at the time, and charges of gross indecency.  He was given a sentence of two years and ten months, with 20 months suspended, in fact he served 14 months.

14None of the other indictments had been determined until after the charges came before me in this Court on 14 March 2014.  At that stage, he was 53 years - there were three offences.  Those offences were more serious than these, in that while they were under the same section in the Act, they involved three counts which involved masturbation of the victim, and one count which involved fellatio.  For such sentence, he was given a 12-month period of imprisonment, which was suspended for three years.

15Mr Cocking further came before this Court this year in April, before Judge Gamble, and after a trial was convicted of two charges.  Again, these charges came about from him giving lessons to children, as did the ones that I had earlier heard.  Again, for the purpose of sentencing, he had no priors and he was given 12 months’ imprisonment, wholly suspended for a period of two years.  And I should point out that the offences that were heard before the jury and of which he was convicted in a trial conducted by Judge Gamble, were similar to the offences with which I am dealing today, that is not involving penetration.

16The charges, as a result of that trial, which were left, are in fact the charges which Mr Cocking subsequently pleaded to.  In the plea, Mr Terry appeared.  He tendered his submissions, Exhibit 1.  He was upfront about seeking a similar sentence to those that I have just detailed.  He said that the matters raised which would lead the Court to such a sentence were the fact there were no priors, the issue of delay – although this matter, of course, must be taken in the context where the offences have occurred long ago.

17While there was delay of reporting, the fact is that this is a consequence of sexual offending and occurs many times, which I mentioned into my earlier sentence.  Mr Terry spoke of the objective circumstances of the offence and I accept that the particulars that we are dealing with here are of a lower order of objective culpability and, as I have already remarked, of a lower order than the matters I previously dealt with, with Mr Cocking.  He spoke of the personal circumstances of Mr Cocking, now being a man of 82, who is in frail health.

18Mr Terry tendered as Exhibit 2 the report from the Carn-Brae Clinic, which detailed all of the conditions that Mr Cocking is being treated for, which were similar to that previously before me, and Judge Gamble.  However, the heart issue has proceeded to the state that on 24 January of this year, he had required aortic valve replacement and as a result of that was on ongoing medication.  There was no issue, as put by Mr Terry, that there was a concession the matter was serious and deserving of imprisonment.

19Insofar as assessing the culpability of these crimes, the principles set out by the High Court in Ibbs v R [1987] HCA 46 apply, where on the scale of heinousness it is necessary for a Court to make a determination where it fits. As I said, it is of the lower order, given the range of types of offences that could have been charged under this section, as indicated - a section 68(3) count at the time could include a count of fellatio, which of course could not happen now.

20As I said, Mr Terry submitted imprisonment was in range, but given the matters in mitigation, he submitted there was no reason why a fully-suspended sentence should not be imposed.  He submitted the plea was of utilitarian benefit, and in particular thereby did not involve the victim giving evidence.  Albeit in those circumstances the plea was late, it was obviously valuable.  The plea was made, despite the court refusing to give any sentence indication.  He stressed the issue as to lack of priors.

21I have already commented on the issue of delay.  However, there is no doubt that there is no evidence of any ongoing breaches of the law.  It was submitted that these crimes were more serious than those dealt with by Judge Gamble, because of the time involved.  That is, in this case it is over two years; in Judge Gamble’s case he made a finding that it only occurred in one year - that is, 1961.  However, what has to be balanced against that, of course, is that this is a plea.  The matters before Judge Gamble were consequential upon a finding of guilt by the jury.

22The issue as to his service of a prior jail sentence was brought up appropriately, being that, had all these matters been heard at an earlier time, they may have been encompassed in the totality of the sentence imposed in Ballarat.  However, my comments apply, as I have said earlier in his sentence, that of course these crimes could have been brought to a head, had he volunteered the information at that time. 

23Insofar as the relevant sentencing principles, I was referred by Mr Terry to the case of R v Rumpf [1988] VR 466. That is, that subsequent convictions do not apply in any way for the purpose of increasing the length of the sentence. And I accept that. And also, the issues involved in sentencing a mature offender for crimes committed when that person was a young person, I accept the principles set out by Appeal Justice Nettle, as he then was, in R v P J B [2007] VSCA 242. And I accept the matters detailed in Exhibit 1.

24It was further put that there had been ongoing compliance with the two suspended sentences already imposed and there were no risks involved in a further such sentence in regard to Mr Cocking.  Mr Terry put that a sentence of imprisonment was called for, and in the circumstances an appropriate sentence would be a period of total suspension.  Ms Hamill, who was the original prosecutor, discussed with the Court the particular principles of punishment, general deterrence, and denunciation, which are of course very important in cases of this type.

25Ms Hamill also discussed the issue of the provisions of s 85(b) of the Crimes Act, referring to compensation orders which may be made.  This prompted some discussion with the Court.  The matters were finally determined, as a matter of law, as matters that are not taken into account.  In fact, in the Court’s civil jurisdiction, I have been monitoring the steps taken to effect an award of damages to the victims involved in Mr Cocking’s crimes.

26It is hoped that very shortly with the completion of this sentence, the house that Mr Cocking now occupies will – pursuant to a confiscation order upon it – be sold and appropriate compensation paid by way of the four victims.  However, it was accepted by counsel following consideration that such is not taken into account in regard to the sentence here.  The fact that it is a matter of course of conduct is also accepted.  And further, it was accepted that the Serious Sex Offenders provisions do not apply to these crimes.

27The issues as to rehabilitation were discussed, and the principles set out in Stalio were referred to by the prosecutor. However, of course, the offending in that case were far graver, involving penetration, fellatio, and digital penetration. The learned prosecutor submitted to the Court, as I have already remarked, the need for the Court to comply when sentencing with the provisions of s.5(2F) of the Sentencing Act.

28Because of the issues as to s.85(b), and the issue as to clarification of the Serious Sexual Offending legislation, the sentencing in this matter was put off until 20 November, when Ms Nehma appeared for Mr Cocking and indicated that Mr Terry and she had no issue with the fact that the orders which are likely to be made under s.85(b) do not come in to be taken into account in the sentencing, as was the submission of the prosecution. They also accepted that the Serious Sex Offenders legislation did not apply.

29And at that further hearing, the prosecution submitted to the Court that a sentence including a term of imprisonment was warranted. Whether such was immediate, or a fully-suspended, or part-suspended sentence was left to the Court to determine. In considering those matters, of course, it is necessary to take into account the purposes of sentencing set out as it then was in s.27 of the Sentencing Act, as to suspended sentences, the fact is that these are now course of conduct charges and, as I indicated, the sentence has to be a sentence which takes into account the provisions of s.5(2F), whereby the sentence must reflect the totality of the course of conduct.

30As the Act says, one is still sentencing for each single offences, but with that overrider.  Prior sentences, albeit more serious, were sentenced as rolled-up matters and upon the principles relevant to such.  The balancing and comparison, certainly, to my earlier sentence, is therefore somewhat difficult.  As I say, the offences in this case are by their nature lower order, however Parliament has now decreed what many people may describe as retrospective punishment.

31However, the statement made by Parliament and the attorney general at the time, determined that such did not offend the Human Rights Act of this State.  And a statement to that effect was tendered by the prosecution.  And I should say, that course of conduct charges also require the consent, before they are issued, of the Director.  And that consent was also filed.  Balancing all those matters therefore, I propose to sentence as follows.  If you would stand, Mr Cocking.

32In regard to the first charge, you will be sentenced to a period of imprisonment of nine months.  In regard to the second charge, a period of imprisonment of nine months.  In regard to the third charge, a period of imprisonment of 12 months.  And in regard to the fourth charge, a period of imprisonment of 12 months.  Making Charge 3 the base sentence, I order that three months of the sentence in regards of Charges 1 and 2, and six months of the sentence in regards of Charge 4, be served cumulatively upon the sentence imposed in Charge 3, making a total effective sentence of two years.

33Having considered the provisions of s.5(2F), the principle of parsimony, the principles set out in s.5(3) and 5(4) of the Sentencing Act - and taking into account the submissions that I have detailed of both counsel, I have determined that it is appropriate in such circumstances, and in compliance with the circumstances detailed in, the then s.27(1) of the Sentencing Act, that this sentence be fully suspended for a period of three years.  And I so order.

34Mr Prosecutor, do I have to make any other orders?  I think I perhaps have to decide 6AAA ‑ ‑ ‑

35MR BOURKE:  Yes, Your Honour, you do.

36HIS HONOUR:  ‑ ‑ ‑ clearly, to the best that I can comply with Parliament’s requirements, as that clearly – had it not been a plea of guilty, there would not have been a suspended sentence imposed in this matter.

37MR BOURKE:  If Your Honour pleases.  No further orders required, Your Honour.

38HIS HONOUR:  Yes.  Because I think all those orders have probably been signed prior to.

39MR BOURKE:  Indeed, they have.

40HIS HONOUR:  Ms Nehma, do you need any clarification on any matter?

41MS NEHMA:  No, I don’t, Your Honour.

42HIS HONOUR:  Okay.  So, just so I explain to you, Mr Cocking:  I’ve sentenced you effectively to a period of two years’ jail.  Similar to your prior sentences, that period is fully suspended for a period of three years.  The major obligation upon you in regard to that is to ensure that you don’t commit any offences in that time.  Given your history, I’m totally satisfied that that will be carried out by you.  It’s necessary for me to tell you the importance of you pleading guilty in this matter.

43It’s difficult to really comply, in the circumstances, with the requirement of Parliament, given the multiplicity of factors.  But clearly, had you not pleaded guilty, you wouldn’t be getting a suspended sentence.  All right?

44ACCUSED:  Thank you, Your Honour.

45HIS HONOUR:  Yes, thank you.  And no doubt I’ll see you shortly, when all those compensation matters have to be heard.  Yes.  Any other matters, Mr Prosecutor?

46MR BOURKE:  No, thank you, Your Honour.

47HIS HONOUR:  Righto, thank you.  Madam Associate, are you happy with everything?

48ASSOCIATE:  Yes, Your Honour.

49HIS HONOUR:  Righto.  Did we get the victim back online at all?

50MR BOURKE:  No, Your Honour.

51HIS HONOUR:  No – yes, well, this was the problem that happened last time.

52MR BOURKE:  I see.

53HIS HONOUR:  And I think we just decided – I thought we decided that we would just send him the transcript or indeed a video of it.  And that’s probably what we will do, is it?  When I say “we”, what the prosecution will do.

54MR BOURKE:  Yes.  I understand the OPP will do that, Your Honour.

55HIS HONOUR:  Yes, all right, thank you very much.  And thank you for your assistance.

56MR BOURKE:  Not at all.

57MS NEHMA:  Thank you, Your Honour.

58HIS HONOUR:  Yes.  I’ll stand down for the next matter.

- - -