Director of Public Prosecutions v Coogan (a pseudonym)
[2023] VCC 1446
•1 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN COOGAN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE ELLIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 July 2023 |
DATE OF SENTENCE: | 1 August 2023 |
CASE MAY BE CITED AS: | DPP v Coogan (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1446 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: two charges of incest – one charge of indecent act with a child under 16 - one charge of sexual activity in the presence of a child under the age of 16 - one charge of possession of child pornography – plea of guilt – significant breach of trust – no relevant criminal history
Legislation Cited: Crimes Act 1958 (Vic); Crimes (Sexual Offences) Act 1991 (Vic); Crimes (Sexual Offences and Other Matters) Act 2014 (Vic); Crimes Amendment (Sexual Offences) Act 2016 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic); Serious Offenders Act 2018 (Vic)
Cases Cited: R v Verdins [2007] VSCA 62; 16 VR 269; Worboyes v The Queen [2021] VSCA 169; R v Ware [1977] 1 VR 647; DPP v Charlie Dalgliesh (a Pseudonym) [2017] VSCA 360; DPP v G [2002] VSCA 6; R v Sposito (Unreported, VSCA 1993); DPP v Meharry [2017] VSCA 387; DPP v Wilson [2018] VSCA 263; Pickford v the Queen [2019] VSCA 195; McCray (a pseudonym) v Queen [2017] VSCA 340; DPP v Shearer (pseudonym) [2019] VSCA 47; DPP v Howard (a pseudonym) [2021] VSCA 298; DPP v Colman (a pseudonym) [2023] VCC 926; Fichtner v the Queen [2019] VSCA 297; R v Kilic [2016] HCA 48; Carter (a pseudonym) v The Queen [2018] VSCA 88; Grantly v The Queen [2018] VSCA 112
Sentence: Total effective sentence of 8 years and 9 months imprisonment. Non-parole period of 5 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Sargent | Mr G. Martin |
For the Accused | Ms A. Roodenburg | Mr K. Burke |
HER HONOUR:
1Sean Coogan[1], you have pleaded guilty to:
·Two charges of incest contrary to s44(1) of the Crimes Act 1958 (the Act),[2] which carries a maximum penalty of 25 years' imprisonment (Charges 1 and 2);
·One charge of indecent act with a child under 16 contrary to s47(1) of the Act,[3] which carries a maximum penalty of 10 years' imprisonment (Charge 3);
·One charge of sexual activity in the presence of a child under the age of 16 contrary to s49F(1) of the Act,[4] which carries a maximum penalty of 10 years' imprisonment (Charge 4);
·And one charge of possession of child pornography contrary to s51G(1) of the Act,[5] which also attracts a maximum penalty of 10 years' imprisonment (Charge 5).
[1]A pseudonym.
[2] As amended by the Crimes (Sexual Offences) Act 1991.
[3] As amended by the Crimes (Sexual Offences and Other Matters) Act 2014.
[4] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
[5] Ibid.
2Charges 1, 3 and 4 are rolled‑up charges, each encompassing two occasions or instances of offending. You committed these offences against your biological daughter, Isla Coogan[6], over the period of approximately seven years from when she was aged nine through to 16 years.
[6] A pseudonym.
3Isla was born in August 2006. She is now 17‑years‑old. You are now 36 years. Your daughter had always resided in your care, initially when you were living with your wife and her mother Sharon Coogan[7], and then later after your separation in 2019, Isla resided in your full-time care.
[7] A pseudonym.
4Throughout the period of your marital breakdown, you and your wife stopped sleeping in the same bed, from about 2016. Your wife and daughter shared a set of bunk beds in her bedroom but you would often ask the victim to sleep in your king bed, telling her you were lonely and wanted someone to hug.
5Turning now to the details of the offending, which were set out in a Summary of Prosecution Opening dated 10 July 2023. When Isla was aged nine or 10 years and living in Hawthorn, she walked into a room to find you masturbating as you watched pornography on a computer. You asked the victim to 'help' you get to the point of ejaculation.
6She was then required to use her hands to masturbate your penis. As she did so, you instructed her to 'show more' skin so that you could 'finish faster', and you pulled down one of the shoulders of her dressing gown to expose her bare shoulder and neck. The victim left before you ejaculated.
7I note that this is a rolled‑up charge which encompasses both the act of you watching the pornography in the presence of your daughter and having her masturbate your penis as you did so (Charge 3 - indecent act with a child under 16).
8When your daughter was aged between 10 and 13 years and residing in Hawthorn, there were three occasions on which you penetrated her vagina. On the first occasion, your wife was home. The victim was in your bed playing on your phone. She was lying against some pillows and you laid down with your body under the blanket but your head uncovered. You began flicking your tongue in and out of her vagina as you masturbated yourself (Charge 1 incest - rolled up).
9Mrs Coogan entered the room and you hid yourself under the blanket. Your wife had a short conversation with your daughter before leaving the room. You then continued to use your tongue to penetrate the victim's vagina.
10On another occasion, Isla was sleeping next to you in bed when she awoke to pain in her vagina. You were lying next to her and putting your thumb or fingers into her vagina as you masturbated yourself. She felt a ripping pain. She could hear moaning sounds coming from your phone and surmised that you were also watching pornography.
11The victim pretended to be asleep but laid in the bed crying. She tried to pretend she was moving in her sleep in an effort to dislodge your fingers but was unsuccessful. You continued to penetrate her with your fingers until you ejaculated and then turned off the video you were watching (Charge 2 - incest).
12On a further occasion when the victim was sleeping on her stomach on the fold-out couch in the lounge room, she awoke to find you moving her legs wider and licking her vagina from behind. Her maternal grandmother was present in the house, and when she started walking down the hallway, you stopped what you were doing. This conduct forms part of the rolled‑up Charge 1, the charge of incest.
13On another occasion when the victim was in year 7, you showed her images of child pornography which depicted naked children. You commented something along the lines of, 'These girls look like you' (Charge 4 - sexual activity in the presence of a child under 16).
14Your victim began recording your sexual offending and how she felt about it through a notes application on her phone. In September 2022, she showed the notes to a school friend, who then told her mother. Her friend's mother notified the school, and police were contacted.
15On 5 September 2022 and again on 11 October 2022, Isla participated in a VARE with police in which the offending was disclosed. She also disclosed a number of acts which are not the subject of charges, and upon which you are not to be sentenced, but are included to give context as to your relationship with the victim. These include:
·Asking if she masturbated and had shaved her pubic hair;
·Purchasing a vibrator for her;
·Requesting closed mouth kisses on the lips which you called 'pecks';
·Asking for cuddles (lying down in bed together) in exchange for taking her where she wanted to go;
·Taking her to a nudist beach on multiple occasions;
·Providing her with alcohol and drinking together to the point of getting drunk;
·Coming into the bathroom while she was showering;
·Play fighting with her on your bed, putting your leg on top of her and holding her down; and
·Filming and photographing her on the toilet when she got her first period.
16During the investigation, police analysed photographs found on your phone. These included a series of photographs taken in March 2022 of your daughter in a bikini and you posing naked with an erection. Isla told police she had taken the photos of you as requested whilst you were on an isolated beach at Wilsons Promontory when she was aged 15. This conduct is part of Charge 4 - sexual activity in the presence of a child under 16.
17Police analysed devices seized under warrant from your home, including computer towers in your bedroom. Child Abuse Material was located on two of the computer towers. The categorisation based on the nature of this material is set out in an Annexure to the Summary of Prosecution Opening (Annexure 1).
18In total, there were 255 category 1 material (with over 26 hours of video recordings); 470 items of category 2 material (with over 68 hours of video recording); and 1 category 3 child abuse material (Charge 5 - possession of child abuse material).
19You were arrested by police on 5 September 2022 and took part in a taped record of interview. During that interview, you told police that:
·You and your daughter have a really close relationship and that she is your, 'Best mate almost' (Q&A 69).
·Regarding Charge 1, you stated that you had given her, 'a peck on the top of her vagina - just the once'. When asked what made you kiss her on the vagina you answered, 'I just did it 'cause I just - was just - I thought it was just cute. I didn't really mean, like, anything by it, but it's obviously really affected her. Like, really affected her, and I'm just broken' (Q&A 189).
·You told police that you had kissed her belly and her legs, saying that you know it's wrong but that you had never done full oral sex on your daughter (Q&A 390).
·You denied sexually penetrating the victim, saying the only thing you could recall was a peck on the top of her vagina. You stated you never put a finger inside of her (Q&A 387, 151).
·Regarding Charge 3, you told police that she caught you off‑guard when she came in and you hadn't really noticed her. You said that initially you covered up but she had already seen what was happening with the porn on the screen and you couldn't shut it down quick enough. You stated that you thought she was interested, 'Just like, "What are you doing?"' You told the police, 'She obviously came in and came right up to me, yeah, so - I think she tried to poke - well, tried to poke my penis' (Q&A 397-411).
·You denied asking her to masturbate you to help you finish but said, 'I almost let her poke me, which is stupid' (Q&A 464-470, 581).
·You denied that you had ever shown her photographs of naked children (Q&A 474-475).
·You told police you had never searched for child pornography on your computer but it had come up when you had been browsing and you would close it down. You denied that you had ever downloaded child pornography.
·You told police that you were doing the best you could as a single dad working fulltime. You said you still believe you can be the best dad she can have, stating, 'I honestly believe I've been a really good dad to her. I don't think I've done the right thing, these little things here, but I feel like that's - past me' (Q&A 584).
20You were charged on 9 September 2022 and the matter resolved on 3 April 2023 when you indicated your intention to plead guilty. It is therefore a plea of guilty entered at an early opportunity. You have no prior criminal history.
Victim Impact
21Isla has prepared a victim impact statement. In describing the impact your offending has had on Isla, I am unlikely to be able to do that statement justice. You heard the prosecutor read it aloud in court. It is powerful and poignant.
22Isla does not feel like she had a childhood. She felt manipulated, isolated and that she could not ask anyone for help, whilst simultaneously feeling disappointed that her own family did not see things for what they were. She felt that no one saw her pain and all she wanted as a child was for someone to question anything but no one did. As a result she feels that she cannot show her true feelings and often lives behind a façade.
23She states: “I often wondered whether he was a bad person and a good dad or vice versa. My answer is that he was both and neither. While living with him, I didn't know how I should have felt about him. He ruined how I viewed relationships. He broke the wrong boundaries.”
24She goes on to say: “He broke me down to a point where I currently don't know how to stand up for myself because all I've learned is how to be taken advantage of.”
25Your offending confused Isla, who still cannot understand why her father would have done this to her. She states that these questions haunt her and will do so for the rest of her life. Your daughter has had to move to a new household with new people and felt lost and alone.
26As a result of your offending Isla has at times felt disassociated. She has experienced panic attacks, alcoholism, has self-harmed and continues to feel a rollercoaster of emotions, including feeling numb, experiencing guilt and the total confusion of a young girl who was abused by her own father for his depraved sexual gratification. I take into account the effect that your conduct has had on your victim.
Personal Circumstances
27Turning now to your personal circumstances. These were canvassed during a comprehensive plea in mitigation. You were born in August 1986 in Sydney and then moved to Maitland, New South Wales. You had a happy childhood with your parents and two siblings. Your parents worked fulltime.
28Your mother suffered brain tumours and strokes and she now requires full-time care which is fulfilled by your father. You attended your schooling in NSW and completed Year 12 despite some academic struggles. During your childhood you were extremely shy, which may have been due to you having a stutter. Despite some earlier bullying you managed to make some good friends in your later years of high school.
29After completing secondary school you moved to Armidale in New South Wales and began studying Environmental Science and Town Planning at the University of New England, which is where you met your wife in 2005. She was an overseas student. Within four to five months, she fell pregnant with your daughter.
30You ceased your studies and began working full time in order to provide for your family, while your wife completed her degree in mathematics and statistics. The two of you were married and returned to Maitland.
31Eventually you moved to Sydney and later Melbourne, so that your wife could pursue career opportunities. Whilst living in Sydney, your wife experienced racism due to her heritage and this was part of your decision to move to Melbourne. This left you feeling isolated away from your family and friends and outside of work, you made few friends.
32You have been working with Woolworths supermarkets for over 21 years, moving within the business to Sydney and then Melbourne. You worked your way up to store manager and had various leadership positions managing a large number of staff. You loved your job and were good at motivating and managing employees.
33The organisation supported you in obtaining further qualifications including a certificate and a diploma in retail leadership. You resigned after being charged with this offending, although this meant you turning down the role of permanent store manager.
34The relationship with your wife began to deteriorate in 2016, and this was the catalyst for a difficult period in your life as she threatened self-harm in the event of separation. Ultimately, you were separated in 2019 and divorced in August 2021.
35As a result of your wife obtaining work outside of Melbourne, you became Isla’s primary carer and your wife would visit her every second weekend. During this time, to manage your feelings of loneliness, you began drinking more and exploring pornography online. This transitioned to infrequent viewing of child pornography.
36Meanwhile, your key relationship was with your daughter, and, as your counsel submits, eventually the line between what was appropriate and what was not began to blur. It was submitted that most of the occasions of offending occurred after you had been consuming alcohol.
37You are now single and have no contact with your daughter. Your father and siblings remain supportive of you despite these charges. This is indicated in the character reference provided by your father, Duncan Coogan[8].
[8] A pseudonym.
38You are said to have an excellent work ethic and I accept that you took on considerable responsibility with respect to your workplace over your 20 years of service. Your wife too has prepared a reference in support of you. Both of your referees speak of your commitment to your family.
39I take into account that you come before the court with a strong work background and with no prior criminal history. Although your previous good character carries less weight given the nature of the offending, here it is not an irrelevant consideration that you have no prior criminal history.
Psychological Assessment
40A psychological assessment was conducted and a report was provided by Marlese Bovenkerk. She notes that you struggled with anxiety and perfectionism as a child and as an adult in the context of work and relationship stressors. She opines that you developed an avoidant style of coping in a maladaptive effort to manage these stresses and that as an adult you continued to utilise avoidance through suppression of emotions and increasing reliance on alcohol.
41You have admitted sexually deviant thoughts in relation to the victim and underage children. This is something that you have reportedly tried to manage for a long time. You were able to identify cognitive distortions at the time of the offending and that you 'didn't think it was that bad' given the absence of force. You reportedly have some increasing insight into this distorted thinking.
42Ms Bovenkerk has diagnosed you with a paedophilic disorder, non-exclusive type, sexually attracted to females and opines that you would have met this diagnostic criteria over your offending. She notes your increasing access to pornography as your marital relationship broke down and that you used this to regulate your emotions.
43Your use of pornography reportedly transitioned from adult to child pornography intermittently. You told Ms Bovenkerk that you happened to download a whole heap of child pornography but never opened it. You admitted watching and being aroused by child pornography, but said you felt sick about it afterwards.
44Ms Bovenkerk considers that engaging in maladaptive behaviours continued to your sexual preoccupation which has led to the development of a deviant sexual interest, difficulty within your intimate relationship, and substance use, all of which predisposed you to offend. Your use of child abuse material likely served to normalise, strengthen and reinforce your sexualised thoughts and urges.
45A risk assessment was conducted using the Static-99R and the Risk for Sexual Violence Protocol, which identified a number of risk factors. Of relevance is the presence of chronicity, diversity, escalation, psychological coercion and sexual deviance, all of which are serious concerns and are strong risk factors for future sexual violence. [9]
[9] Psychological Report prepared by Marlese Bovenkerk, paragraph 117.
46Additionally, you present with a lack of coping skills and a reliance on substances, and collectively, these factors increase your vulnerability towards sexual offending. Ms Bovenkerk opines that you pose a moderate to high risk of sexual recidivism. She recommends intensive psychological intervention.
47Ms Bovenkerk reflects that you were able to demonstrate a positive attitude towards intervention and demonstrated some insight into your alcohol‑use problems and offending behaviour. She considers that you displayed remorse and regret for your actions, recognising the significant harm and distress caused to your victim.
48Ms Bovenkerk considers that you meet the diagnostic criteria for Major Depressive Disorder since being charged, and with anxious distress of a moderately severe level. Your presentation is likely compounded by your resignation from your job from which you derived a high degree of purpose.
49You have made some efforts to engage in counselling, which you have found unhelpful, but you recognise the need to engage in offence specific treatment as recommended and have indicated a willingness and a desire to do so. Ms Bovenkerk also recommends that you engage in psychological treatment to improve your coping skills and to treat your depression and anxiety.
50It is not submitted by your counsel that principles in R v Verdins[10] relating to a reduction in moral culpability are enlivened here. However, given the diagnosis of Major Depressive Disorder, your counsel submits that limbs 5 and 6 have application, in light of Ms Bovenkerk's view that prison is likely to be a negative experience for you; that you are vulnerable given your naivety; and you are at a higher risk of threat, intimidation and exploitation by offenders in custody.
[10] [2007] VSCA 62; 16 VR 269.
51Ms Bovenkerk notes there is a risk of aggressive behaviour from other inmates within the prison environment, and that there is a significant risk that your mental health may be further exacerbated in custody, leading to a decompensation in your mental state.
52The prosecution submit that Ms Bovenkerk is speculating as to the impact a jail term might have on your mental health, and that this is an insufficient basis upon which to make a finding. I agree there is a significant degree of speculation in this assessment.
53Your Major Depressive Disorder largely appears to be in response to your current circumstances. This may not be surprising given the situation in which you now find yourself. However, I accept Ms Bovenkerk's assessment that there is a significant risk that your mental health may in effect deteriorate with your incarceration.
54However, this may be true of many inmates, particularly those facing imprisonment for the first time, and so whilst I do take it into account and whilst I accept that prison may be more burdensome for you as a result, I give it limited weight.
Plea of Guilty
55I take into account your plea of guilty which was entered at an early opportunity. In doing so, you have saved the community the time and expense of a trial at a time when the court has been experiencing a backlog due to the pandemic.
56Accordingly, in accordance with what the Court of Appeal said in Worboyes v The Queen,[11] your plea should result in a perceptible amelioration of sentence. Significantly, by accepting responsibility for your offending, you have not only demonstrated remorse but importantly you have spared Isla from the ordeal of having to give evidence.
[11] [2021] VSCA 169.
Prospects of Rehabilitation
57Your lack of prior offending, your history of hard work, coupled with the fact that you maintain the support of your family and ex-wife, all bode well for your prospects of rehabilitation.
58Your comments to police when confronted with the allegations of this offending are troubling. You sought to minimise your behaviour, and you justified utterly inappropriate sexual conduct with your daughter on the basis that you were otherwise a good father. Notwithstanding this, it seems from Ms Bovenkerk's report that you appear to have gained some insight and understanding as to the impact of your offending, which is positive.
59However, given the matters raised in Ms Bovenkerk's report, you are at risk of re-offending, particularly in the absence of any offence specific treatment. Although your prospects are guarded, they will be improved with appropriate education and counselling.
60As I have said, I take into account your plea of guilty and I accept that you are remorseful for this offending. Tendered on the plea was a letter that you had written addressed in effect to your daughter, to your family and to the Court. You set out the fact that you are remorseful in that document and I take it into account. It may be that your daughter never sees that letter and it may be that she never wishes to do so, understandably, but I do accept the sentiments expressed in that letter as indicating your remorse.
Nature and Gravity of Offending
61Turning now to the nature and gravity of the offending. Sexual offending against children, but in particular incest, is abhorrent. The maximum penalty for the crime of incest reflects the seriousness with which the legislature views this offending.
62Incest is a crime of violence and must be so regarded. It 'strikes at the familial roots of civilised society'[12] and 'has long been regarded as being a crime of particular repugnance.'[13] Your offending involved a fundamental breach of parental trust and responsibility.
[12]R v Ware [1977] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing); quoted with approval in Dalgliesh [28].
[13]DPP v Charlie Dalgliesh (a Pseudonym) [2017] VSCA 360 [66] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh No. 2’).
63There is a presumption of harm in matters concerning the sexual offending against children, especially in cases of incest.[14] The long-term harm done to the victims must be given due weight in the sentencing process. I have had the benefit of the victim impact statement and it is apparent indeed that you have caused significant harm. As has been recognised, sentences must be commensurate with the serious breach of parental responsibility involved.
[14] Ibid [68].
64In DPP v G,[15] Winneke P said this of the crime of incest at [11]:
This court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes.
The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents and those in loco parentis who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.
[15] [2002] VSCA 6.
65In R v Sposito,[16] Marks J, with whom Hampel and McDonald JJ agreed, said the following:
A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are the natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.
Another feature is that the resolve of the victim to resist the demands of the offender is weakened by the natural affection which the child has for his or her parent, and by reason of other aspects of natural dependency.
[16] Unreported, Supreme Court of Victoria, Appeal Division, Court of Criminal Appeal, 8 June 1993.
66It is difficult to imagine conduct which is more evil than that of a father, or a person in the position of a father, who preys for his own sexual gratification on his own young child.[17]
[17] Ibid 4–6. See also Ware 653; DPP v MJ [2000] VSCA 66 [17] (Phillips CJ, Brooking JA and Hedigan AJA agreeing); DPP v Toomey [2006] VSCA 90 [18]–[19] (Vincent JA) (‘Toomey’); OAA v The Queen [2010] VSCA 155 [42] (Maxwell P and Weinberg JA); Dalgliesh [80]; Dalgliesh No. 2 [67].
67Your conduct against your daughter did indeed constitute a most abhorrent abuse of trust. You took advantage of that position of trust that you had with your daughter, of whom you ultimately had the primary care. You penetrated her and exposed her to child pornography for your own depraved sexual gratification.
68Moreover, you offended against your victim over a number of years, commencing when she was particularly young at just nine or 10 years old. Your counsel submits that the conduct was really confined to six occasions over four or five years. I take this into account. Whilst the offending was intermittent, it would have nonetheless been frightening and confusing for your child.
69As I have noted, this offence is in itself a crime of violence. In the case of Charge 2, your offending caused Isla physical pain. That offending also involved you penetrating your daughter whilst she was asleep, and when she was particularly vulnerable. You appear to have done so whilst watching pornography, adding to the depravity which permeated this offending.
70Your offending was brazen. The first occasion on Charge 1 was interrupted by your wife entering the bedroom. Despite this, you continued penetrating your daughter, masturbating yourself after your wife left.
71Similarly, on the second occasion of Charge 1, when again your daughter had been asleep when you started your offending, your mother‑in‑law was just down the hallway, which seems to have done little to deter you from engaging in this vile conduct.
72Likewise the offence of possession of child abuse material is also one of considerable gravity, it far from being a victimless crime. It encourages and creates a market for corruption and exploitation of children who are sexually abused in order to meet demand. The internet provides an easy means for this exploitation because of the anonymity it affords and how it increases the difficulties in detecting this offending.
73The nature of the material was clearly graphic according to the classification and depicted young children. Your counsel has conceded the nature of the material was objectively serious. The number of images, in this case largely videos, was considerable: many hours' worth of depravity.
74I accept that the possession is confined to a single date and that the items were possessed for personal use, and you did not possess the material for sale or distribution. The offending was relatively unsophisticated and no efforts had been made to conceal the presence of this material.
75As has been made clear, when it comes to sentencing for this offending, general deterrence assumes particular significance. The Court of Appeal emphasised in DPP v Meharry[18] the importance of general deterrence in relation to online sexual offences against children, including possession of child pornography, noting:
The sentences also needed to satisfy the requirements of general and specific deterrence. As to general deterrence, online sexual offences against children — including possession of child pornography — are easy to commit and difficult to detect. It is therefore essential that those who may be tempted to engage in such offending clearly understand that, if they do so, they will be sentenced to significant terms of imprisonment.[19]
[18] [2017] VSCA 387.
[19] Ibid [166].
Rolled‑up Charges
76As I have already noted, some of the charges are rolled‑up charges. When sentencing on a rolled-up charge, the court must consider all of the circumstances of the offence and the totality of harm described in the charge. While I may consider all of the relevant circumstances of a rolled-up charge, the plea of guilty must still be treated as entered to a single formal charge – here this applies with respect to Charges 1, 3 and 4.
Totality
77You have pleaded guilty to 5 charges. The offences involve distinct and serious conduct. Each offence warrants individual punishment. There is a need for the sentence to reflect the individual charges and the conduct they comprise. However, I must ensure that the totality of the sentences imposed for these crimes is met with a total and proportionate sentence. Therefore, I have both moderated to a degree the length of the individual sentences and the periods of cumulation. This is necessary to avoid a crushing sentence.
Current Sentencing Practices
78Both parties have provided a number of cases involving the charge of incest where the sentences were imposed after Dalgliesh. This include DPP v Wilson,[20] Pickford v the Queen,[21] McCray (a pseudonym) v Queen,[22] DPP v Shearer (pseudonym),[23] DPP v Howard (a pseudonym),[24] and DPP v Colman (a pseudonym).[25]
[20] [2018] VSCA 263.
[21] [2019] VSCA 195.
[22] [2017] VSCA 340.
[23] [2019] VSCA 47.
[24] [2021] VSCA 298.
[25] [2023] VCC 926.
79Some of these cases have similarity to the present circumstances, although I note some of them involved particularly serious offending including specific instances of coercion and aggression. In some instances the offenders were sentenced following a trial. Self‑evidently no two cases are the same. However, I have had regard to these cases both with respect to general principles and current sentencing practices.
Sentencing Principles
80I have had regard to the basic purposes of sentencing, namely just punishment, denunciation, deterrence, protection of the community and rehabilitation. I also take into account various factors such as the seriousness of the offending, your culpability, the impact on the victim and your personal circumstances.
81The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders can be rehabilitated. I also have regard to principles of parsimony.
82The sentencing principles of general deterrence, denunciation and just punishment assume considerable importance in this case.[26] Others who might be inclined to engage in this sort of behaviour must be deterred from doing so.
[26]Fichtner v the Queen [2019] VSCA 297 at [67-69].
83Specific deterrence is also a relevant consideration given the protracted period over which you offended against Isla and that there were multiple occasions. You must be deterred from committing similar offences in the future and so I do have regard to each of these sentencing considerations and for avoidance of doubt, I do indeed denounce your conduct.
84I have had regard to the current sentencing practices for the offence of incest as informed by the decisions of the High Court in R v Kilic,[27] DPP v Dalgleish (a pseudonym), and in the Victorian Court of Appeal's decision in Dalgleish (No.2), Carter (a pseudonym) v The Queen,[28] and Grantly v The Queen.[29] Current sentencing practices are but one of the factors to consider but are not the controlling factor.
[27] [2016] HCA 48.
[28] [2018] VSCA 88.
[29] [2018] VSCA 112.
Serious Sexual Offender Provisions
85Each of these charges are serious sexual offences as set out of the Sentencing Act 1991 (Vic).[30] You fall to be sentenced as a serious sexual offender once convicted and sentenced to imprisonment on two of these five charges.
[30] Schedule 1, Clauses 5, 12, 30 Serious Offenders Act 2018 (Vic).
86The effect of sentencing as a serious sexual offender is that pursuant to s 6D of the Sentencing Act 1991 (Vic), the court must regard protection of the community as the principal purpose for which the sentence is imposed. In order to achieve that purpose, the court may impose a disproportionate sentence.
87The prosecution does not seek a disproportionate sentence here, and I do not intend to do that. Pursuant to s 6E of the Sentencing Act1991 (Vic), the court must, unless otherwise directed, order that the sentences be served cumulatively. Furthermore, pursuant to s 6F, I must enter into the record that you were sentenced as a serious sexual offender on the relevant charges.
Sentence
88On Charge 1, the charge of incest, you are convicted and sentenced to 6 years' imprisonment. This charge will be the base sentence.
89On Charge 2, a charge of incest, you are convicted and sentenced to 5 and half years' imprisonment.
90On Charge 3, indecent act with child under 16, you are convicted and sentenced to 2 years' imprisonment.
91On Charge 4, sexual activity in the presence of a child under the age of 16, you are convicted and sentenced to 1 year imprisonment.
92On Charge 5, possession of child abuse material, you are convicted and sentenced to 2 years' imprisonment.
93As I have said, I order that the sentence imposed on Charge 1 will be the base sentence.
94I order that 18 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
95I order that 9 months of the sentence imposed on Charge 3 will be cumulative on the sentence imposed on Charge 1 and on other sentences imposed this day.
96I order that the sentence imposed on Charge 4 be served concurrently with the sentence imposed on Charge 1 and other sentences imposed this day.
97I order that 6 months of the sentence imposed on Charge 5 be cumulative on the sentence imposed on Charge 1 and on other sentences imposed this day.
98This equates to a total effective sentence of 8 years and 9 months' imprisonment. I fix a non-parole period of 5 years and 9 months' imprisonment. Having been convicted and sentenced to a term of imprisonment on Charges 1 and 2, I have sentenced you as a serious sexual offender on Charges 3, 4 and 5, and this will be noted in the records of the court.
Pre-Sentence Detention
99Pursuant to s 18 of the Sentencing Act, I declare eight days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
Section 6AAA
100Pursuant to s 6AAA of the Sentencing Act, I declare that had you pleaded not guilty to this offending but found guilty, I would have sentenced you to a total effective sentence of 11 years and 3 months, with a non‑parole period of 8 years and 3 months.
Sex Offender Registration
101In relation to the Sex Offender Registration provisions, I note that Charges 1 and 2 are Class 1 offences pursuant to Schedule 1 of the Sex Offenders Registration Act 2004 (Vic). Registration is mandatory. I declare, having been found guilty of two Class 1 offences, you will be required to comply with the obligations imposed by the Sex Offenders Registration Act 2004 (Vic) for the rest of your life.[31] Upon your release from custody, you must comply with your reporting and other obligations, as I have said, for the period of your life.
[31] Section 34(1)(c)(i) Sex Offenders Registration Act 2004 (Vic).
102I must advise you as to the nature of these obligations under the Sex Offenders Registration Act and this will be provided to you by way of a notification of those reporting obligations. You are going to be asked to read through those obligations and, Ms Roodenberg, will you take Mr Coogan through that? All right, thank you. All right, Mr Coogan, you can have a seat.
Order for Forfeiture
103I make the order for forfeiture, which I understand is not opposed. Counsel, are there any matters that I have overlooked or that require correction?
104MS ROODENBERG: No, Your Honour.
105HER HONOUR: I have signed the forfeiture order. I thank counsel for your assistance and your comprehensive submissions. You can now take Mr Coogan back into custody, thank you. We will now adjourn, thank you.
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