Director of Public Prosecutions v Cohen (a pseudonym)

[2015] VCC 831

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCHELL COHEN (a pseudonym)[1]

[1]To ensure that there is no possibility of identification of the individuals concerned, these reasons have been anonymised by the adoption of pseudonym in place of the name of the accused.

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 24, 25, 26, 27 February and 2, 3, 4 March 2015
DATE OF SENTENCE:	17 June 2015
CASE MAY BE CITED AS:	DPP v COHEN (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 831

REASONS FOR SENTENCE
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Subject:  Criminal law - Sentencing.

Catchwords:             Two counts of Sexual penetration of a child under the age of 12; indecent assault.

Legislation Cited:     Sentencing Act 1990

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R Hammill (Trial, Plea) Ms E Finnigan (Sentence)	The Office of Public Prosecutions
For the Accused	Mr R Lawrence (Trial, Plea) Mr H Gokler (Sentence)	MLG Lawyers

HIS HONOUR:

1       Mitchell Cohen[2], you have been found guilty by a jury of three counts of wilfully committing an indecent act with a child under the age of 16 years, and two counts of sexual penetration of a child under the age of 16 years.

[2] A pseudonym

2       The circumstances of your offending are as follows. 

3       You were a family friend of the complainant and her mother for some years.  You had known the complainant virtually since the time of her birth.  She was aged nine years at the time of your offending.

4       You were a trusted friend of the complainant and her mother and a regular visitor to their home. 

5       It was not unusual for you to take the complainant on shopping expeditions.  The closeness of your relationship is evidenced by the fact that she asked you on one occasion to accompany her to her school on a “father-student” day.  Although you were not her father, you were obviously held in high esteem by her.  The complainant’s father had actually separated from her mother when she was very young and had effectively played no role in her life.  You appear to have become something of a "father figure" to her.

6       On Sunday 15 June 2014, you attended the flat where the complainant and her mother resided.  The complainant had earlier telephoned you and asked if you would take her shopping.  Soon after your arrival at the flat, you entered the complainant’s bedroom.  The complainant’s mother and another family friend were in the living room nearby.  After playing with the complainant for a time, you placed your hand inside her pants and touched her vagina.  That conduct constitutes Charge 1.

7       Sometime later, you and the complainant left the flat with the intention to drive to the Highpoint shopping centre.  This involved you descending by elevator from the 12th floor of the flats to the ground level.  Whilst in the elevator, you placed the complainant in front of you, initially with your hands across and in front of her.  You then moved her hands behind her back, placing one of her hands on your penis.  That conduct constituted Charge 2.

8       You and the complainant drove to Highpoint and remained at that shopping centre for some time.  You then drove from Highpoint, ostensibly home to the complainant’s flat.  During that journey you parked the car on a side street and directed the complainant into the back seat where soon after you followed.  Once in the back seat, you kissed her on the mouth.  That conduct constitutes Charge 3.

9       You then pulled the complainant’s pants down, made her lie down, opened your zip and placed your finger inside her anus and then your penis inside her anus.  That conduct constitutes Charges 4 and 5.

10      Upon your arrival home at the flat, the complainant went straight away to the bathroom.  Soon after she called her mother and showed her that she was bleeding from an area close to her anus.  I accept that as a result of either your digital or penile penetration of her, she suffered a laceration close to or on her anus.

11      After your departure from the flat the complainant complained to her mother concerning your actions.  The complainant’s mother took her to the Emergency Department at the Royal Children’s Hospital, where she was seen by a paediatrician who observed a laceration in the complainant’s peri-anal area.  The paediatrician formed the view that this was most likely caused by traumatic penetration.  Police were called to the hospital.

12      On 19 June 2014, four days after the events, you agreed to participate in a record of interview with police and denied each of the allegations made against you.  You admitted that you had attended at the flat, entered the complainant’s bedroom to play with her, departed the flat by means of the elevator and had driven to and from the Highpoint Shopping Centre.  You denied that any offence had occurred.  You denied touching the complainant’s vagina or making her touch your penis.  You denied that you had stopped the motor vehicle on the way home from Highpoint.  You told police that you had driven directly to the complainant’s flat and had at no time got into the back seat with her or committed any of the offences alleged by her.

Background

13      You are aged about 45 years.  You were born in Eritrea.  You were a victim of a war that took place in that country from prior to your birth until 1991.

14      You barely knew your father and it appears that when you were very young, he was arrested and killed by soldiers during that war.

15      You and your family were forced to leave Eritrea, walking many days to reach Sudan where you were raised, initially by your mother and later by your grandmother.  It appears that for much of your life you had little real family support.

16      After completing school you joined an Eritrean resistance group and returned to Eritrea for military training.  You were deployed in prisoner of war camps and at the end of the war, served in the Eritrean army until your discharge in 1994.

17      In 1997 you emigrated to this country.

18      Your work record here is good.  From a time soon after your arrival you have been in employment in a variety of occupations, right up to the time of your trial.  For the last eight years you have been employed by Linfox in a warehousing position.

19      For most of that time you have provided financial support for your mother, who is in poor health and continues to live in Sudan.

20      You enjoy good health.

Sentencing purposes and guidelines

23 Section 5 of the Sentencing Act 1991 sets out the purposes for which I may sentence a person guilty of a crime. Briefly stated, these include punishment, deterrence, both specific and general, denunciation of the offender's conduct, protection of the community, and to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated.

21 Section 5(2) of that Act requires me to have regard to a number of specific matters of relevance to this case. They include:

(a)The maximum penalties prescribed by Parliament for the relevant offences.  The maximum penalty in respect of the charge of wilfully committing an indecent act with a child under the age of 16 is ten years’ imprisonment.  The maximum penalty in respect of the offence of taking part in an act of sexual penetration with a child under the age of 12, is 25 years’ imprisonment. 

Those sentences demonstrate the seriousness with which Parliament considers these offences have. 

(b)Current sentencing practices.  Counsel referred me to a number of decisions concerning sentences handed down by the County Court and the Court of Appeal for offences that were somewhat similar to your offending.  Each of those decisions were, in my opinion, distinguishable from your own offending and the circumstances of your offences, but I have taken them into account.

(c)The nature and gravity of the offences committed by you.  In that respect, I consider that these offences were serious. They occurred in circumstances where you were in a position of authority and of trust.  The complainant was very young.  You were a mature aged adult.

(d)Your culpability and degree of responsibility for the offences.  There could be no doubt that your culpability in respect of each of these offences is high.  No one else was in any way responsible for them.  You could have been under no illusion that what you were doing constituted a serious breach of the law.

(e)The impact of the offences on any victim and resultant injury, loss or damage.  Victim impact statements were made by the young complainant and by her mother.

I note that the complainant referred to the pain that she suffered during the anal penetration by you.  She states she is sometimes too scared to go to school and too sad to play with other children.

Her mother refers to a number of matters.  Her daughter’s continuing nightmares.  Often these involve a fear that she will be attacked again. Her daughter’s feelings of guilt for what happened with resultant

self-hitting by her, and her daughter's absences from school and the need for teachers to visit at home.  

I accept that the lives of the complainant and the mother have been thrown into some turmoil as a consequence of your offending.  It is only one year since the offences occurred and it is hoped that the complainant can make a full recovery, yet I cannot be satisfied at this time that the effects of your offences upon her are permanent.

I have not taken the complainant's mother’s statements concerning her fears of community revenge into account.

(f)Whether the offender pleaded guilty to the offence and, if so, at what stage of the proceedings.  Here you pleaded not guilty and on that account, have indicated no remorse for your offending.

(g)The offender’s previous character.  Here I sentence you on the basis that prior to the offences in question, you had not been charged or convicted of any offences in approximately 20 years in Australia.  You were not known to police in any respect.  Accordingly, I sentence you on the basis that you were of good character before the offending conduct.

Further, a number of character references were tendered on your behalf. These were from fellow members of the Eritrean community in Melbourne.  The authors of those references considered that you have, for many years, been a person of good character and a respected member of your community.  They consider that your offending seems to have been out of character.

(h)The presence of any aggravating or mitigating factors concerning you or any other relevant circumstances.

Your breach of trust is plainly an aggravating circumstance here. You were an old and trusted friend of the complainant and her mother, an “uncle” like figure.  You were trusted to take her out of the home.  You were expected and trusted to take care of her on such excursions.

In addition, the Crown has submitted that you exposed the complainant to the risk of infection, in that you engaged in unprotected penetration of her.  However, I am not satisfied that the evidence establishes that that was the case.

Mitigating Factors

22      In terms of mitigating factors, your counsel has put forward a number of factors that he submitted should go in mitigation of your sentence.

23      I accept firstly that:

(1)    You have no prior convictions and a good work history.  You have been willing to financially support your mother, who is in poor health in the Sudan.

(2)      You have had a difficult upbringing on any view, in the context of being raised in a country involved in war and having to leave your home and your homeland.  I not that you have had no contact with your father since you were very young.

(3)      That your offending, although serious, appears not to have been predatory nor protracted, having occurred on a single occasion.

(4)      Although your conduct involved penile penetration, I am not satisfied that you failed to use a condom, with associated risk of infection and

I am not satisfied that you ejaculated.

(5)      You probably have relatively good prospects for rehabilitation.  It seems that you have good support from your community, or at least parts of it.  You are likely to attend a Sex Offender Programs whilst in custody.  I consider that your prospects for rehabilitation would be stronger if you were prepared and able to demonstrate some remorse for your offending.

Sentence

24      Having taken all of these matters into account, I have come to the conclusion that the purposes for which I am to sentence you would not be achieved by a non-custodial sentence.

25      I consider that the young age of the complainant and the gross breach of your position of trust, together with principles of specific and general deterrent, call for an immediate period of imprisonment.

26      

I take into account that, by reason of the terms of s.6(b) of the Sentencing Act, you are to be sentenced as a Serious Sexual Offender in respect of

Charges 3, 4 and 5. Accordingly, by reason of s.6(e) of the Sentencing Act, each term of imprisonment imposed upon you in respect of those offences should be served cumulatively, unless otherwise directed by the court.

27      Notwithstanding those provisions, principles of totality remain relevant.  The Director of Public Prosecutions has submitted to me that a disproportionate sentence is not required to protect the community in your case and I accept that submission.  

28      I have determined that the sentences to be imposed by me ought not, in all the circumstances, be wholly cumulative.  This reflects that your offending occurred over a relatively short period, on a single occasion, and the lack of a need to impose a disproportionate sentence to protect the community.  I direct that it be noted in the records of the court that I am sentencing you as a Serious Sex Offender on Charges 3, 4, and 5.

29      With regard to Charge No.5, that is the charge relating to the penile penetration of your victim’s anus, you are to be sentenced to a term of imprisonment of four years.  This shall be the base sentence.

30      With regard to Charge 4, that is digital penetration of your victim’s anus, you are sentenced to a term of imprisonment of 18 months, six months of which shall be served concurrently with the term imposed on Charge 5.

31      With regard to Charge 1, the touching your victim’s vagina, you sentenced to a term of imprisonment of one year, six months of which is to be served concurrently with sentence imposed on Charge 5.  

32      With regard to Charge 2, making the victim touch your penis, you sentenced to a term of imprisonment of nine months, three months of which shall be served concurrently with the sentence imposed on Charge 5.

33      With regard to Charge 3, that is kissing your victim on the mouth, you are sentenced to a term of imprisonment of three months, which shall be served concurrently with the sentence imposed on Charge 5.

34      Accordingly, there is a total effective sentence of six years imprisonment.

35      I direct that you shall not be eligible for parole for a period of four years.

36      Because of these offences, you are a registrable offender under the Sex Offenders Registration Act 2004. By operation of s.5 of that Act, your offending, having all occurred within a 24 hour period, is to be regarded as part of the same incident. Pursuant to provisions of Part 3 of the Act, you will be subject to reporting obligations upon your release from custody. Those reporting obligations will continue for 15 years from the date of your release.

37      My Associate will shortly hand to you a form notifying you of your reporting obligations and you will be required to sign that form where indicate, acknowledging that you have received the form.

38      Madam Prosecutor, in terms of the period of pre-sentence detention?

39      MS FINNIGAN:  Yes, Your Honour, I have recorded as 105 days, not including today.  From 4 March, as I understand it.

40      HIS HONOUR:  One hundred and five days?

41      MS FINNIGAN:  Yes, Your Honour.

42      HIS HONOUR:  Does that sound right to you, Mr Gokler?

43      MR GOKLER:  Yes, that's right, Your Honour.  We have done the calculations and it seems to be correct.

44      HIS HONOUR:  Thank you.  I declare that 105 days of pre-sentence detention, not including today, be reckoned as having been served under that sentence, and I direct that a declaration to that effect be recorded on the records of this court. 

45      Now in terms of ancillary orders, is there anything further sought?

46      MS FINNIGAN:  No, there's not, Your Honour.

47      HIS HONOUR:  Thank you.  Is there anything further that counsel wish to put to me? 

48      MS FINNIGAN:  No, Your Honour.

49      MR GOKLER:  No, Your Honour.

50      HIS HONOUR:  Yes.  Thank you.  Mr Cohen, if you would just sign the form relating to reporting conditions.  Mr Gokler, are you familiar with these forms?

51      MR GOKLER:  No, Your Honour.

52      HIS HONOUR:  What is suggest is you have a look at them.

53      MR GOKLER:  That is fine.

54      HIS HONOUR:  And then you may approach the dock and discuss them with Mr Cohen.

55      MR GOKLER:  That is fine, Your Honour. 

56      HIS HONOUR:  Is there anything further?

57      MS FINNIGAN:  No, Your Honour.

58      HIS HONOUR:  Yes, thank you. 

59      Yes, Mr Cohen may be taken downstairs, thank you.  And adjourn until 10.30 tomorrow. 

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