Director of Public Prosecutions v Cook

[2017] VCC 1514

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

AT BENDIGO

CRIMINAL JURISDICTION

CR -17-00185

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY COOK

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	19 October 2017
CASE MAY BE CITED AS:	DPP v Cook
MEDIUM NEUTRAL CITATION:	[2017] VCC 1514

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr L. Docherty

Pages 1 - 12

 

 

HIS HONOUR: 

1Anthony John Cook, you were presented by indictment with charges involving carnal knowledge, attempted carnal knowledge and indecent assault upon which you stood for trial.

2After the complainant, to whom I shall refer to as M for privacy and reasons of anonymization, gave her evidence in chief and was about to be cross-examined by your counsel, you pleaded guilty to Count 1 and 3 of carnal knowledge as the offence was then known between 1974 and 1976, and to indecent assault, the appropriate charge for the digital penetration at that same time.

3The circumstances of the offences can be summarised briefly.  You were aged between 17 and 19 during period alleged in the count and for purposes of this plea, given that there are no other factors which can clearly establish an accurate time, I will use the earliest age available.  At that time, you lived with your parents.

4The consideration as to time, it must be noted, applies equally to the complainant.  She was aged between four and five during the relevant period.  The relative age difference remains of course the same as between the two of you but if I treat the earliest date as the relevant time referenced for you, then the younger that makes the complainant.

5In the end, not much turns on this chronological issue.  She was a very young child between four and five and you were a young man between 17 and 19. 

A nominal midpoint is probably fair and adequate for both.

6The considerations which apply to these ages probably do not vary greatly with the variation in age.  The complainant, M, is your second cousin in the sense that your mother and you are cousins.  She lived with her parents but would from time to time visit her grandmother who lived next door to your parents. 

It was on one such visit that the offending occurred.  M was playing in the background to her grandmother's house.  From time to time, other children from your family would play there and you have conceded recalling that you did so as well.

7On the day in question, you approached M, took her by the hand and walked her down to a track which ran behind the properties and down to a creek. 

A bridge crossed the creek nearby and you took her under the bridge to a sand bar, upon which the two of you could stand in the middle of the creek.  

The complainant recalls seeing what she now knows were pornographic magazines under the bridge.  She was wearing a skirt or a dress, you pulled down her underwear and attempted to insert your erect penis into her vagina.  You were unable to do so because you were much taller than her.  You knelt down and then again attempted to penetrate her vagina, this time, the head of your erect penis penetrated her vagina.  She felt a stinging sensation and pain.

8As you penetrated her, she was pushed back and you held her by her shoulder to stop her from moving backwards and to hold her in place.  You tried on two or three more occasions to insert your penis into her vagina.  One each occasion, the head of your penis entered her vagina, but you were unable to penetrate further.  M told you it was hurting her and you replied, "It's okay." 

You then inserted two fingers into her vagina.  You tried inserting a third, but failed to do so.  M was crying and asking to go to her mother.  You let her go.  She pulled up her pants, you lifted her over the creek and she walked back to her grandmother's house, some eight or ten houses away.  You remained behind.

9When M got to her grandmother's home, she was there with M's mother. 

M immediately complained that you had hurt her and her vagina was sore. 

Her mother later in a statement made to police described looking at her vagina which she described as being quite red.  M's mother told her grandmother and at the committal, under cross-examination, said that M's complaint and what followed was emblazoned on her mind.  She spoke to her husband and asked him to say something to your father.  If he did it, it is not something he can now recall doing.  Nor did there appear to be any clear recollection by anyone as to what followed any such complaint.

10It was let run, it appears, like the water under the bridge, but that was not the case with M.  For a substantial period of years, the complainant and her family did not associate with your family but as is clear from her evidence both at trial and at committal where she was cross-examined, albeit sparingly and in an appropriate manner, M did not forget what recalled clearly what was done to her by you and what it felt like.  So after many years, which included counselling and recurring nightmares about this event, she contacted police and as a result called you on the phone and then met you in person in April 2016, during which meeting, she recorded the conversation for police investigating the matter.

11In that conversation as in the earlier phone call, you did not deny the allegations when she said to you, "I'm calling you about do you remember what happened when we went to that bridge?"  You said, "Oh well, no.  Well I know we were there."  And, "We did quite often at different times."  But you profess of having no memory of any indecent assault as described in the detail by M.

12During the face to face meeting, she said she had, "A picture perfect memory of what you did to me.  I wake up remembering what it felt like.  You have no idea of the damage that did to me."  You told her that you did not remember anything like that probably because you are an alcoholic, that your alcoholism went back to years immediately following that period during which time you blocked out many aspects of your life and memory.  You apologised to her and said that such an apology did not mitigate what happened or absolve you of fault.  She told you she did not have the luxury of not remembering. 

13You reiterated your lack of memory of the event during an interview conducted that day by the police.  You told them you were unable to recall many details of your life from age 17 to about 22 because of extremely heavy drinking.

14A victim impact statement was received by M.  She read it out to the court. 

She wrote that you had taken away her innocence and that this feeling of being violated had accompanied her all her life and give her a sense of self-consciousness insecurity that she was damaged goods.  The shame and humiliation she experienced has not subsided over these many years and the effects of those emotions have flowed to her children, her parents, siblings and husband.

15The hypervigilance of her children's safety and integrity has conditioned her and their life.  The recurring vivid flashbacks and nightmares have affected her peace of mind and her sleep, exacerbated by depression, anxiety, palpitations and an ominous sense of fear coupled with loss of self-confidence and embarrassment.  She asked rhetorically, "What could I have become if he hadn't done this to me?"

16There are all matters which the court hears routinely in this court from victims of child sexual abuse.  Out of the experience of now two decades or more of such cases before this court, and the awareness even of the community, the damage done and its impact upon victims is beyond argument or any scepticism.

17Her father and mother also provided victim impact statements.  Her father's sense of guilt in his estimation has damaged their relationship with a sense of disappointment and disgust.  Her mother also expresses the same sense of shame which both emotionally and physically, has affected her sleep, her serenity and family life.  These too are understandable responses which I take into account.

18I bear in mind that rehabilitation of victims of even limited instances of sexual abuse may often be difficult.  Frequently, the damage will be profound.  As in this case, a long time passes before it can be addressed.  In the meantime, self-esteem is damaged, childhood innocence is destroyed and capacity to take up opportunities and even relationships are lost or severely impaired. 

The community rightly looks to the court to assert that the value of protecting the most vulnerable children from sexual abuse, particularly from those who they should be able to trust is paramount.

19In my view, the offences, although committed sequentially over a short time and not repeated, carry a high level of moral culpability and objective gravity. 

You were a much older relative in the context of a safe, family environment, trusted by a young child.  The sexual acts were penetrative and therefore at the highest level of abuse of physical integrity involving pain and distress as well as an element of coercion by your restraint.  This was serious offending.

20This objective gravity of the offending is of necessity but the first of many considerations.  The age difference is an aggravation which was rightly conceded during the plea.  This is but the starting point of a synthesis of factors which must be taken into account in this difficult sentence.

21I take your plea into account.  It was not entered at the earliest opportunity. 

The complainant was cross-examined at the committal, as was her mother although, as I have said, given your instructions as to memory with appropriate circumspection by your counsel.  Nevertheless, there was still the necessity for M to give evidence before a judge and jury and that could have been avoided.

22However, without doubt, cross-examination at trial would have been a further ordeal which was avoided.  In the end, there is, in my view, a view I expressed at the end of M's evidence a significant residual utilitarian benefit from the plea.  That does call for amelioration of sentence in recognition of that fact.  It cannot be said to be accompanied by remorse because the circumstances of the plea and your stance as to your memory as I have explained it.  But I accept that ultimately it was made not only to receive a benefit as to sentence, but it recognise the legitimacy of M's allegations.

23You do not have any prior criminal history and more importantly, you have no relevant post offence criminal history.  I take this circumstances into account. 

It is obviously an important confirmation.

24Of the rest of your personal circumstances, which I take into account, you were born in Bendigo, you are now 60 years of age.  You parents and your four brothers lived on dairy farms in this region.  You completed Year 9 at school and you commenced an apprenticeship was terminated in 1975 when a motorcycle accident led to a long treatment for a shattered right leg.

25Around 1975 the family moved to Bendigo and by late 1976 you returned to work with council for a year and later as a slaughterman butcher for some months.

26Since 1981 to the present day, you have been employed at Bendigo Hospital as a trade assistance maintenance person.  Therefore, you have an excellent work history.

27In 1977, you married your first wife and had two children, who are now aged

39 and 37.  However, that relationship was short-lived.  You separated after two years and divorced in 1984.  In February 1985, you married your wife and in 1989, you had a child who is now aged 28.

28Your trouble with alcohol began when young, drinking to excess as a teenager especially in periods when you lived away from the family for work reasons.  When aged 21, the problem had escalated to an extent that you went to Alcoholics Anonymous (AA).  You stopped drinking and you attended at AA for about five years. 

You have not drank since.

29You have also had positive community involvement, some as a result of parental demands.  Others not.  You were a Cub Leader in the Cub and Scouts from 1991 to 2001 and you have been a member of fishing, archery and field and game gun clubs for many years.

30Much reference material was received by the court on your behalf. 

Your 35 years of service as the hospital was recognised by a certificate from the hospital.  I also read the earnest and impassioned letters from a clinical nurse specialist in ICU, Mr Wyndham, the acting nurse unit manager at the hospital at Cabrini.  Both of them attested to your loyalty, honesty and reliability.  You have their highest regard.

31I accept that this matter has affected you and caused stress and anxiety particularly at a time when you assisted your mother and father with their physical difficulties, culminating in your father's death in 2016.  Your mother is now 80 and your wife has written of the impact of this matter on you, upon her and upon the children.  She is also a nurse and she outlines her natural concerns for your well-being, the antidepressant and antipsychotic medication which you have been prescribed to deal with your predicament.

32I accept that this matter has caused such extra curial distress as evidenced by the months you took off work.

33A longstanding friend, Mr Fox, your parents in law, your sister in law, also a nurse, your niece, Melissa, a specialist education teacher, the Haines family reference, your niece, Lyndon, Mr Philby, your son's friend, your sister in law, Christina, and Mr Patterson, a friend, a business owner and Rotary Club president each wrote of your dedication to your family, your generosity, honesty and consideration.  They each attest to the out of character nature of these offences and I take these references into account as well as the four references received later from Ms Sotsik, a highly qualified nurse and health manager in the Bendigo region.  Mr Andrew, who also worked with you for

35 years, both speak of your supportive and compassionate nature and from Ms Heath, who speaks of your helpful and caring dedication to family.

34A report from a local medical practice also certified that you have attended seven appointments with psychologists since August 2016.  The references are an impressive body of support which describe you in positive terms your demeanour and your reputation.

35I accept that you are a person who has rehabilitated himself and who has led a worthy life within his best endeavours despite some setbacks.

36Your age means you are unlikely to reoffend.  So community protection is not a factor and the achievement of a life of family and work does you credit and that credit must be taken into account in this analysis.

37During the plea, I noted two aspects of this material without diminishing the impact of this impressive material, I noted no one had turned their minds to the victim in meaningful way.  I accept that most references were prepared for the magistrate at an earlier time when they were concerned to emphasise the out of character of the allegations.  This is not a criticism.  It was to emphasise that the consideration of the impact on M is a proper and necessary process for the court to undertake.

38Secondly, it is simply a truism to note that probably very few of those who wrote could say anything about you as a young man.  I am left with the reasonable inference that at the time of the offending, you were probably less mature and perhaps more impulsive and lacking in the judgment and wisdom which age brings about.

39In any event, this body of references has a considerable weight. 

The submission from your counsel was essentially that I should impose a wholly suspended sentence or as a fall-back position, a partially suspended sentence.  This was based on a number of factors I have outlined, the plea, your personal circumstances, your work history, your relationship and personal family history, the support of family and friends, your rehabilitation, the extra curial matters which have impacted on you during this delay, the lack of the need for specific deterrence and community protection, your excellent prospects for your future all support this primary submission.  None of that can really be gainsaid meaningfully. 

40This of course leads to the central tension and difficulty of this sentencing disposition.  The prosecution contended that a suspended sentence was inappropriate because limited to three years or less and therefore insufficient and inappropriate although available to deal with this historical offence. 

The prosecution also professed scepticism at your claim to not remember. 

In my view, I do not need to make a finding in relation to that matter.

41Notwithstanding the passage of time, it argued that the full force of the law must be applied to deter generally and punish justly to punish serious offending at the higher end of such offending.  I am not persuaded on objective factors of this later proposition, that is that this offending lies at the higher end of such offending and that must be the case when one looks at it objectively. 

However, I consider your offending serious and your moral culpability high for the reasons that I have outlined.

42I have little doubt that the community and the law expects particularly offences committed against young children to merit substantial punishment.  If such expectation is denied, this can only heighten the risk that the community's respect for the law is diminished.  Those who depart from the standards and values of our society by such offending should not do so with impunity. 

Those who bring hurt, fear and corrupt the innocent, damage the physical integrity of the most vulnerable must expect punishment and the severity of the sanctions should be commensurate with the seriousness of the offence,  that is proportionate, a vindication of the rights infringed, a retribution for wrongs done.

43In this context, retribution means not vengeance but just punishments, just desserts.  Since at least the often cited reiteration of it in the judgment of

Vincent JA in DJK in 2003, the Court recognises the aspect of social and individual rehabilitation of those who have sustained the damage by reason of the commission of a serious offence against them as being central to the sentencing task.  Such recognition is an underlying concern of the criminal justice system.  Social and personal recovery which the system attempts to achieve must be facilitated by sentences which acknowledge the real nature and significance of the wrong done.  If a sentence does not do that and fails to recognise the real meaning of what has happened in the life of the victim, this failure will aggravate with a sense of injustice.

44Your offending did not involve a breach of trust, but a gross exploitation of the imbalance in age.  Notwithstanding all the matters taken into account by me in mitigation, it is clear to me that general deterrence and just punishment must have great importance.  Since the time of your offending, there has been an overwhelming awareness of the incidents and impact of sexual abuse of children and a much greater understanding of the destructive impact that it has had and continues to have on the lives of many.

45The defence sought to argue that I should take into consideration as a reference point your age, the provisions of the then Children's Act 1973, s.3 and s.26 and also the provisions of the current Youth and Families Act in the context of the applicable penalties had you been dealt with reasonably soon after the event.  Had that been the case, you would have been dealt with as a youthful offender.  This, it was argued, should equally focus this sentence on a rehabilitation despite the loss of the opportunity to be sentenced as such back then.

46The principles of Mills, Lawrence and Azzopardi were raised, each of these principles would have had proper application if you had indeed been dealt with in a timely fashion after the event.

47As things stand today, I will take into account your youth, the sentencing practices at the time of the offending, subject to the clarification that the maximum sentence was higher then for carnal knowledge than it is now for the relevant sexual penetration offences.

48What was candidly conceded by your counsel was that it is possible, maybe probable, that you may have received a youth training disposition. 

Although this meant an interference with your liberty, this is different from incarceration in adult prison.  Despite detention, rehabilitation is of primary consideration irrespective of the depravation of liberty in a youth training centre order.

49Authorities were cited and discussed.  In my view, the significance of cases cited such as PJB [2007] VSCA 242, Miller [2011] VSCA 143 and

Better [2003] VSCA 71, is that in each case while the Court of Appeal reduced the terms and ordered suspension of sentences, it did not interfere with the portion already served as a sentence. That is the Court did not say that the whole term should have been suspended. I interpret that as meaning that in each case, the period, albeit brief, of reclusion was appropriate in combination with a suspended sentence.

50I consider that where the offender was young when he committed the offence, this bears on culpability.  When that is not presented until many years later, the prosecuted that should be, there is good reason to mitigate the penalty where the offender has achieved a significant degree of rehabilitation.  The other side of this coin is that the delay was probably generated and can be explained by the very nature of the conduct which by its nature tends to be hidden for many years.

51Ultimately, in my view, the seriousness of the offending reaches across the years to demand a just punishment which is tempered with parsimony. 

Your age means that even without physical ailments, your time as a first time prisoner will be an onerous period which I take into account.

52In a sense, this sentenced proves to be perhaps disappointing for everyone involved in this particular exercise.  It was said in a report in a newspaper erroneously that I choked back tears at the plea.  That is not the case.  But this was a serious matter that needs very weighty considerations because of all of the circumstances, both from M's point of view and from your point of view.

53Please stand. On carnal knowledge, you are convicted and sentenced to two years' imprisonment.  On indecent assault, you are convicted and sentenced to one year imprisonment.  I order that nine months on Count 2 be cumulative on

Count 1.  That makes a total effective sentence of two years and nine months or 33 months imprisonment.  I order that 24 months of the total effective sentence will be suspended for 24 months.  You are to serve nine months' imprisonment.

54But for your plea, I would have sentenced you to three and a half years with a non-parole period of two years.  You are to be subject of registration under the Sex Offenders Act for 15 years.

55Are there any ancillary orders?

56MR CORDY:  Section 464 order, Your Honour.

57HIS HONOUR:  Yes.  I will order that you undertake a forensic procedure for the obtaining of a biological sample for placement on the DNA database and an official who is authorised to do so will ask you for a mouth scraping which is not a painful procedure.  If you do not consent at that time, that officer can use reasonable force to get a blood sample from you.  Do you understand?  Yes.

58I should say to the complainant and those who are with her that these sentences endeavour to deal with legal principles.  No number that the court can pronounce by way of a sentence can really comfort of change the situation.  Sometimes, people use the expression bring closure.  That is a furphy.  Certainly a sentence cannot do that but it can deal properly with legal principles that apply in each case.

59So for both the accused, his family and you and your family, it is important that you have that understanding.

60You can remove Mr Cook.

(Prisoner removed.)

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