Director of Public Prosecutions v Cohen

[2024] VCC 1544

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00692

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANNY MARK COHEN

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2024
DATE OF SENTENCE:	25 September 2024
CASE MAY BE CITED AS:	DPP v COHEN
MEDIUM NEUTRAL CITATION:	[2024] VCC 1544

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:         Plea of Guilty – Sexual penetration of child under 16 – Historical offending – Autism spectrum – Muldrock principles not applicable – Verdins limb 1 – Youth – Rehabilitation – Delay

Legislation Cited:        Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Offenders Registration Act 2004              

Cases Cited:R v Verdins [2007] VSCA 102; Muldrock v The Queen (2011) 244 CLR 120; Stalio v The Queen [2012] VSCA 120; The Queen v AMP [2010] VSCA 48; DPP v Grixti [2018] VCC 2140; DPP v Rodriguez (a pseudonym) [2020] VCC 1616; DPP v Weston (a pseudonym) [2018] VCC 1927

Sentence: Imprisonment for 1 year and 6 months – Wholly suspended – s 6AAA declaration – Imprisonment for 2 years with a non-parole period of 15 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Deanna Caruso	Office of Public Prosecution
For the Accused	Mr David Carolan	James Dowsley & Associates

HIS HONOUR:

1Danny Mark Cohen, you have pleaded guilty to two charges of sexual penetration of a child under 16, contrary to s 45(1) of the Crimes Act 1958 (Vic), as amended by the Crimes (Amendment) Act 2000 (Vic). Each charge carries a maximum penalty of 10 years’ imprisonment.

2You are to be sentenced on the factual basis set out in the Prosecution Opening for Plea dated 16 August 2024, which is an agreed document.[1]

[1] Exhibit P1.

Summary of the Offending

3The offending occurred between 14 December 1991 and 13 December 1993. At the time, you were between the ages of 20 and 22.

4The victim is Gerald Stuart[2], who was aged between 11 and 13 years at the time of the offending.

[2] A pseudonym.

5Your father was a Minister at Mornington Uniting Church. Gerald’s family and your family attended Fusion Youth Group events and other activities. This is how you met.

Incident 1 (Charge 1)

6Between the abovementioned dates, a dinner was organised for the local church leaders and their families. This occurred at a building somewhere near the Mornington Pier. You and Gerald were in attendance at this event. 

7Gerald recalls that you were a ‘mature aged young person’ at the time, who gave him a lot of attention on that night.

8You took Gerald outside to ‘go and play’ and you were alone together in the garden, ‘within the fence line’ where you played hide and seek, or chasey.

9You then said words to the effect of ‘I know something that will keep you warm’. Gerald replied ‘What’s that?’ and you either asked him to pull his pants down or pulled his pants down yourself. You got down on your knees and put Gerald’s penis into your mouth and sucked on it.

10You reassured Gerald that ‘this is something that people do to keep warm’. He cannot recall what made you stop but thinks the contact was ‘only brief’.

Incident 2 (Charge 2)

11On a separate occasion, you drove Gerald to Flinders Park, Mornington-Tyabb Road in Mornington.

12You took him to an area which was mostly trees and bushes for approximately 15 to 20 minutes. You undressed Gerald completely, then performed oral sex on his penis. At first Gerald was standing up but then you asked him to lie down.

13After this, you asked Gerald to perform oral sex on you. You laid down, pulled down your pants and exposed your erect penis. At your urging, Gerald put his mouth around your penis for a ‘matter of seconds’.

14Gerald told you that ‘[he] just wanted to go home’. You both got dressed and you drove him home.

Complaint and Investigation 

15Gerald first disclosed the offending to his university friend, Scott MacKenzie when he was in his mid-twenties.

16In approximately 2019 or 2020, he disclosed the offending to his mother, Janelle Stuart.[3]

[3] A pseudonym.

17Gerald later disclosed the offending to his brother, Vince Stuart[4], on his 40th birthday, on or around 14 December 2020.

[4] A pseudonym.

18On 29 December 2022, Gerald reported the offences to Victoria Police by leaving a voicemail. Detective Senior Constable Richard Kelly called Gerald back the next day to obtain basic details about the offence. DSC Kelly forwarded the investigation to the Frankston SOCIT for investigation.

19You were living in Western Australia at the time of the investigation, where you declined to take part in a voluntary interview with Frankston SOCIT. You were then charged by way of summons on 17 November 2023.

Objective Gravity

20All sexual offending against children is serious. The law seeks to protect children from sexual predators. It does so in order that young people can experience sexual relations at a time and in circumstances of their own choosing. Your offending robbed Gerald Stuart of that fundamental right.

21Whilst you were not in an official position of trust, you were a trusted member of the church community, whom Gerald looked up to.

22The age gap between you and Gerald (9 years) and Gerald’s age (between 11 and 13) are relevant considerations and lead me to accept the prosecution submission that yours is mid-level offending relevant to other offending seen at this court. Young Gerald clearly looked up to you as a ‘mature aged young person’ within the Fusion Youth Group and you took advantage of him for your own sexual gratification. You did this in a secluded location at night.

23Charge 2 is rolled up and consists of two instances of oral sex but I note that the second occasion was only for a matter of seconds.

Victim Impact  

24Gerald Stuart is now 43 years old. He has children of his own. In a very moving victim impact statement dated 16 August 2024, Mr Stuart stated that his self esteem was destroyed by your offending. He has had great difficulty coming to terms with what occurred.

25Mr Stuart states that the worst aspect of the impact was when he became a father and his trauma prevented him from connecting with the joy of being a parent.

26Mr Stuart has struggled in most capacities due to his trauma. He has been fortunate to work in the entertainment industry with compassionate individuals and a caring environment. He hopes to return to professional acting one day.

27Gerald Stuart’s courage in reporting this matter to police is acknowledged by the court. I wish him the best in the future.

28The court has also received a victim impact statement from Gerald’s mother Janelle Stuart. Ms Stuart read her statement to the court at the hearing of your plea. She too salutes her son’s courage and acknowledges his pain and trauma.

29I have taken into account the impact of your offending on the victims.

Personal Circumstances

30You are 53 years of age. You are the eldest of a sibship of four.

31Your father is a Minister of the Uniting Church, and as such during your childhood your family moved around regularly due to his commitments to the Church. You grew up in the areas of Shepparton, Cobram, Portland and Melbourne.

32When you were approximately 6 or 7 years old, you were sexually abused by a family friend. You were subjected to genital fondling and oral sexual penetration over the course of several months.

33The sexual abuse, combined with your cognitive challenges, has  had a significant and lasting impact on your life.

34Your cognitive issues were not diagnosed until later in life. Dr Dion Gee confirmed you have Autism Spectrum Disorder (ASD) comorbid with dyslexia.[5] You were placed in a program named ‘A New Start for Underachievers’ at school. Your parents were aware that you were slower to develop but were not aware of the scope of your cognitive difficulties.

[5] Psychological Report of Dr Dion Gee dated 20 June 2024, Exhibit D1, (‘Gee Report’).

35Dr Gee has said that your family’s transient lifestyle has prevented you from gaining lasting friendships amongst your peers.

36Despite your cognitive issues, you completed VCE, completed an apprenticeship as a nurseryman and commenced a flower growing business. This business did not succeed and you worked in the boat building industry for 10 years. You have a strong work history.

37In about 2010 you moved to Western Australia and now live on a farm. You have been working in the mining industry since then, on a ‘week-on-week off’ roster. Your responsibilities include the maintenance of heavy plant and equipment.

38You are active in the Western Australia community, particularly engaging with the Bridgetown Uniting Church.

Subsequent Sexual Offending

39In 1995, you were charged with and pleaded guilty to five charges of sexual penetration of a child aged between 10 and 16. You were sentenced to a wholly suspended sentence of four months imprisonment in January 1996. This 1996 offending postdated the offending that is the subject of this sentence.

40At the time of the 1996 hearing, you were given credit for having no prior convictions because this matter had not been reported to police.[6]

[6] Prosecution Sentencing Submissions dated 2 September 2024, 2 [7] (‘Prosecution Submissions’).

41After the 1996 offending, you were able to make changes to your life which has meant that you have been offence-free for nearly three decades.

42You have had the support of your parents, particularly your father, who was present at the 1996 plea and gave an undertaking to the sentencing judge, His Honour Judge Duggan, that he would assist you in getting help. Your father continues to support you, having also been present at your plea in August of this year and I note again today.

43Following the 1996 offending, you received counselling from psychologist Dr Elizabeth Scott. You described the counselling as being rigorous and confronting but that it provided you great assistance. This allowed you to engage with emotions such as shame and remorse, that resulted from your offending.

44I accept that you now have more insight and victim empathy than was previously the case.

Psychological Evidence

45Reliance is placed by your lawyers on the report of psychologist, Dr Dion Gee dated 20 June 2024.

46Dr Gee’s report confirms that you do not meet (nor have met) the criteria for Paedophilic or Paraphilic Disorder.

47Dr Gee assesses your risk of future sexual offending as very low, even indistinguishable from those who have never engaged in sexually aberrant behaviour. I accept that if you are willing to engage in further treatment, you have a very good prognosis for rehabilitation.

48Dr Gee recommends that you undergo further assessment for your ongoing neuropsychological profile and intervention, in relation to psychosexual disfunction and social/interpersonal/intimate relationships.

Reduced moral culpability?

49The law makes special provision in a number of ways for offenders who are affected by mental illness at the time of their offending, at the time of sentencing, or both.

50These so called Verdins[7] principles are relevant to a sentencing court and must be carefully applied whenever reliance is placed on them. They can have the effect of mitigating sentence if, for example, a court finds that the offender’s moral culpability, as opposed to their legal responsibility, is reduced due to the impact of a mental illness. Similarly, if a person will experience custody more onerously due to a mental illness this can have a mitigatory effect.

[7] R v Verdins [2007] VSCA 102 (‘Verdins’).

51Conversely, if a person’s mental illness means they are a high risk of future offending, the protection of the community from them may necessitate an increased sentence.

52The law also makes similar provision for the impact of an intellectual disability on an offender under the Muldrock[8] principle.

[8] Muldrock v The Queen (2011) 244 CLR 120 (‘Muldrock’).

53Your counsel submitted that all of the Verdins limbs are engaged and that the Muldrock principle is relevant in terms of sentencing you.

54Your counsel specifically relied upon the assessment of Dr Gee in linking your cognitive and mental health issues and its nexus to the offending. Dr Gee opines:[9]

… Mr Cohen’s sexually aberrant behaviour is best construed as an unsophisticated, ill-conceived, idiosyncratic and naïve ‘adolescent’ attempt at peer bonding, sexual exploration/play (and indeed the potential misguided and misunderstood reenactment of his own abuse) in a then socially, emotionally and sexually immature and isolated 21-year-old male labouring under enduring biopsychosocial dysfunction that saw his mental age being more commensurate with that of an individual whom – at the time – was in early adolescence.

[9] Gee Report (n 5) 5, [12].

55Importantly, Dr Gee indicates that it is difficult to identify a causal nexus between your cognitive difficulties and the offending decades after the event. Dr Gee considers ‘that your condition, combined with the prior sexual abuse you suffered would have “derailed [your] capacity to truly appreciate the wrongfulness of [your] conduct”’.[10]

[10] Defence Outline of Submissions on Plea dated 29 August 2024 4, [14] (‘Defence Submissions’), citing Gee Report (n 5) 8, [19].

56The Prosecution submitted that it did not accept that there was a realistic causal link between your possible ASD and your offending.[11] Counsel for the Prosecution, Ms Caruso submitted that it was difficult to understand how the impairment may have contributed to your decision to offend.

[11] Prosecution Submissions (n 6) 3, [17].

57The Prosecution also does not accept that the principles in Muldrock apply here as you are not of low intellect or low functioning, therefore the principles are not engaged.

58Dr Gee stated that you have ASD ‘without disorder of intellectual development with mild or no impairment of functional language’.[12]

[12] Gee Report (n 5) 4, [8]

59I accept that you have a mild form of ASD which is a life long condition. I have concluded that your condition played a minor role in your offending in the sense that the law would recognise. While it cannot be said that there is a causal nexus, I accept that your delayed maturation played a role in your offending and I have moderated the sentence to a minor extent accordingly under Verdins limb 1. I do not consider the Muldrock principle has any role in your case.

Sentencing Considerations

60Sentencing is always difficult. Sentencing in cases involving historical sexual offending presents particular challenges. A court must consider the seriousness of the offending, the impact on the victim, the subsequent life and rehabilitation of the offender and the need for community protection. The court must take into account the maximum penalties and any special sentencing laws that are applicable.

61You were aged between 20 and 22 years at the time of the offending. As your counsel Mr Carolan pointed out, if these proceedings were brought at that time, you would have been considered a young offender and a rehabilitative disposition would have been a strong consideration for the sentencing judge.[13]

[13] Defence Submissions (n 10) 5, [18].

62Your counsel submitted that you have achieved near complete rehabilitation since the offending occurred.[14] This submission is supported by the character references provided to the court.[15]

[14] Ibid 5, [19].

[15] Character Reference of Chris and Barbara Cohen dated 13 August 2024, Exhibit D3, and Character Reference of Yuko Tonai-Moore (and Addendum) dated 19 August 2024, Exhibit D4

63There has also been a significant delay in these proceedings, with the offending having occurred more than 30 years ago. This delay operates to your benefit, as it has allowed you to take steps to rehabilitate yourself which must be taken into consideration in determining the appropriate sentence.

64It was submitted by your counsel that you are not a suitable vehicle for general or specific deterrence or denunciation. Further, that a period of immediate imprisonment will have a significant negative impact on your mental health.

65The Prosecution submitted that there is a role for general deterrence, just punishment and denunciation.

Sentencing Practices

66Section 5(2)(b) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) requires that I take into account, as one of many factors, ‘current sentencing practices’. ‘Current sentencing practices’ in s 5(2)(b) refers to practices current at the date of sentencing and not the date of offending.[16]

[16] Stalio v The Queen [2012] VSCA 120, [39] (‘Stalio’).

67However, in the case of Stalio v The Queen, the Court of Appeal stated that, when sentencing an individual after a significant delay since the time of the offending, the principle of equal justice requires that regard also be had to sentencing practices at the time that the offence was committed.[17] As the Court there recognised, ‘[i]t would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time’.[18]

[17] Ibid, [52]-[53].

[18] Ibid, [54].

68There is no material before me that describes the sentencing practices for the crime of sexual penetration of a child under 16 in 1991. Given the passage of time, the sentencing practices from that period are difficult to ascertain. In the circumstances, the Court of Appeal has recognised that ‘the best that a sentencing judge [can] do in such circumstances [will] be to have regard to the fact that the range of sentences imposed for this offence were generally lower than the present range of sentences for the same or similar offences’.[19] The sentence you received from 1996 bears this out.

[19] The Queen v AMP [2010] VSCA 48, [34].

69Your counsel relied upon three contemporary cases in which this court imposed wholly suspended sentences in circumstances somewhat similar to yours.

70Firstly, DPP v Grixti[20] was decided in 2018, where the offender was 23 years of age at the date of the offending and the victim was nearly 16 years’ old. The offending occurred in 2001 during the first 6 months of a longer term relationship which resulted in several children. The offender had no prior convictions and nothing subsequent, although he had served 13 months in custody for a conviction that was set aside on appeal. He was convicted and sentenced to a term of imprisonment for 2 years, which was wholly suspended for 2 years.

[20] [2018] VCC 2140.

71DPP v Rodriguez (a pseudonym) was decided in 2020.[21] The offender was sentenced to a wholly suspended sentence in relation to a course of conduct charge between 2003 and 2005, for charges of sexual penetration of a child under the age of 16 years. At the time the offender was 18 years of age and his victim was 14. At the date of sentencing the offender was at least 33 years old.

[21] [2020] VCC 1616.

72Finally, in DPP v Weston (a pseudonym),[22] the victim was 15 and the offender was 22 at the time of the offending. At the time of sentence, the offender was 35. He was sentenced to a wholly suspended sentence.

[22] [2018] VCC 1927.

73While there are clear similarities between the three cases and yours, there is also a significant difference. In none of the earlier cases was there any subsequent offending. As against that, you have lived a blameless life for 28 years since your subsequent offending, which is longer than the periods during which the other three offenders were offence-free.

74Due to the sentences you received in 1996, you are required to be sentenced as a ‘serious sexual offender’.[23] You have five convictions for sexual offences, namely sexual penetration of a child between 10 and 16, with a sentence of imprisonment. They are not prior convictions as they were not imposed at the time of the current offending.

[23] Sentencing Act s 6B.

75I must therefore regard protection of the community as the primary sentencing purpose.[24] The prosecution did not seek a disproportionate sentence and I have not imposed one.

[24] Sentencing Act s 6D.

76Further, pursuant to s 6E of the Sentencing Act, every term of imprisonment must be served cumulatively unless otherwise directed by the court. Section 6F requires me to note your serious offender status on the court record.

Submissions

77Your defence counsel submitted that a wholly suspended sentence is within range.[25] You have pleaded guilty at the earliest opportunity, this is evidence of your acceptance of responsibility and some evidence of remorse. This also has a significant utilitarian benefit as it saves Mr Stuart and other witnesses the ordeal of giving evidence at your trial. This is a significant matter in this case.

[25] Defence Submissions (n 10) 5, [16].

78The Prosecution counsel submissions state that a term of imprisonment is warranted, however, it accepts that a wholly suspended sentence would be within the range of appropriate sentences.[26] The term of the suspended sentence imposed must be a maximum of three years and must be at least the length of the term of imprisonment.[27]

[26] Prosecution Submissions (n 6) 1, [1].

[27] Ibid 1, [2].

Orders

79Taking into account the gravity of your offending, its impact on Gerald Stuart, your current low level of risk to the community, all relevant matters of mitigation as well as the maximum penalty and other sentencing principles, I have decided that a term of imprisonment is warranted in your case.

80I will sentence you to an aggregate term of imprisonment of 18 months.

81Because of the circumstances of your cases as outlined earlier, especially your lengthy period in which there has been no offending, I have decided to wholly suspend that sentence for a period of two years. I have had regard to the criteria in the now repealed s 27(1A) of the Sentencing Act.

82You must understand that if you are convicted of any offending that carries gaol, you will breach your suspended sentence and can be brought back before me and you will have to show exceptional circumstances why the sentence should not be fully restored.

83As you have been found guilty of 2 or more Class 1 offences, pursuant to section 34 of the Sex Offenders Registration Act 2004 (Vic), you are a registerable offender with reporting obligations for life. As a breach of that Act can amount to a breach of your suspended sentence, you must take advice and fully understand your obligations

84Pursuant to s 6AAA of the Sentencing Act, I indicate that if you had pleaded not guilty, I would have sentenced you to 2 years’ imprisonment with a non parole period of 15 months.

85Pursuant to s 6F of the Sentencing Act, I will direct that the records of the court reflect that you have been sentenced as a serious offender.