Director of Public Prosecutions v Cooke (a pseudonym)
[2014] VCC 244
•17 March 2014
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT COOKE (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 10 –13 February 2014, 27 February 2014, 11 March 2014 | |
DATE OF SENTENCE: | 17 March 2014 | |
CASE MAY BE CITED AS: | DPP v Cooke (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 244 | |
REASONS FOR SENTENCE
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Subject: Indecent act with a child under the age of 16 – Incest
Catchwords:
Legislation Cited:
Cases Cited: R v Nutter (unreported) 8 November 1995 (Charles and Callaway JJA and Vincent AJA) – R v Better [2003] VSCA 71 - R v PJB [2007] VSCA 242
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Jones | Craig Hyland, Solicitor for Office Public Prosecutions |
| For the Accused | Mr R Wilcox | Peter Baker & Associates |
HER HONOUR:
1 Robert Cooke,[1] you were found guilty following trial of five charges of an indecent act with a child under the age of 16 and one charge of incest, on a seven charge indictment. The jury could not reach a verdict in respect to Charge 2 on the indictment and therefore were discharged in relation to that count.
[1] Robert Cooke is a pseudonym.
2 These crimes are serious; they involve offending against your half sisters, Kristen Cooke.[2] in respect of Charges 1, 6 and 7; Jessalyn Cooke,[3] in respect to Charge 3; and Cara Cooke,[4] in respect to Charges 4 and 5.
[2] Kristen Cooke is a pseudonym.
[3] Jessalyn Cooke is a pseudonym.
[4] Cara Cooke is a pseudonym.
3 The seriousness of the offending is reflected in the maximum penalty that is prescribed by Parliament; namely; 10 years' imprisonment in respect to the charge of indecent act with a child under the age of 16 years; and 25 years' imprisonment in respect to the charge of incest.
4 Charges 1, 2, 3 and 4 occurred when you were living at 8 Margaret Street, Cohuna[5] with your mother and your half sisters.
[5] Address is a pseudonym.
5 In respect to Charge 1, indecent act with a child under the age of 16, this concerns an occasion between 1 January 1992 and 31 December 1992 when Kristen was aged about four years and you were aged 15 years. The evidence led at trial was that you called Kristen into your room at which time you were touching your penis and you told Kristen to touch your penis and she did so.
6 Charge 3 concerns an indecent act with a child under the age of 16 and that relates to an occasion when Jessalyn, was aged about four years and you were aged about 16 years. The offending is said to have occurred between 1 January 1993 to 31 December 1993. On that occasion you called Jessalyn into your bedroom and told her to take off her clothes. She obeyed your direction and then you asked her to dance around naked. You then told her to sit on your belly while you played with your penis.
7 Charge 4, indecent act with a child under the age of 16, concerns Cara, who was aged between five and six years and you were aged 19 when this offending occurred. The offending took place between 1 January 1996 to 31 December 1996. You called Cara into your room and told her to sit on your bed. You pulled your pants down and started masturbating in her presence.
8 Charge 5 occurred when Cara was aged between six and seven and you were aged about 20, between the dates of 1 January 1997 to 31 December 1997. This offence occurred at 6 Barrhead Street, Cohuna.[6] Cara was in the house with her brother, Adam,[7] and they were fighting over a PlayStation. Cara went outside to ask you to intervene . You were then living in a tent in the back yard. You said to Cara that you would let her play with the PlayStation if she let you do something to her. You were lying down at the time and you told Cara to stand over your face and open her legs, which she did. You then removed her underpants to one side and started to lick her on the outside of her vagina.
[6] Address is a pseudonym.
[7] Adam is a pseudonym.
9 Charge 6, indecent assault with a child under the age of 16, concerns Kristen. This event occurred when she was aged between 11 and 12 and you were aged approximately 23. You came into Kristen’s room late at night. You asked her to touch your penis and take her pants off and put her legs in the air. You then stood at the edge of her bed and rubbed her vagina with your penis.
10 Charge 7, one charge of incest relates to Kristen, when she was aged between 12 and 13 and you were aged about 23. This occurred in a caravan at 6 Barrhead Street, Cohuna. You were living with the family at that time. You asked Kristen to suck your penis and she did so.
11 You have admitted your criminal record. There are two prior matters; one at the Kerang Magistrates’ Court on 22 March 1995, when you dealt with for unlawful assault and convicted and fined $750; and another on 13 June 2001 when you were dealt with on a charge of burglary and theft; without conviction, the matter was adjourned for 12 months.
12 There are subsequent matters. On 15 October 2003 you were dealt with at Kerang Magistrates’ Court in respect to the attempted theft of petrol from a car, tamper with a motor vehicle and go equipped to steal, for which you were placed on a six month community-based order with conditions. On 3 November 2005 you were dealt with at the Bendigo Magistrates’ Court for theft of a bicycle and placed on a community-based order for six months. On 5 October 2006 you were dealt with at Bendigo Magistrates’ Court for an unlawful assault for which you were convicted and fined $250. On 5 October 2006 you were dealt with for failure to comply with the community-based order that was imposed in respect to the theft of a bicycle and fined $400. On 23 June 2008 at Kerang Magistrates’ Court you were dealt with for burglary and theft of food from supermarkets and failed to answer bail for which you were placed on a community-based order for three months, and on 8 November 2010 you were dealt with at Kerang Magistrates’ Court in respect to failure to comply with the community-based order imposed for the latter offence, for which you were convicted and fined.
13 These charges are all serious having regard to the nature of your offending, the fact that you abused your position of power over your younger victims, each of whom were your half sisters. In the trial, Kristen Cooke gave evidence to explain why she delayed in complaining. She did not make a statement to the police until 15 July 2011. She said that when she was younger she trusted you and did not really understand what was going on until she was older and then you were intimidating to her. She said that you always told her not to tell anyone and that she was scared of you. Jessalyn Cooke’s evidence was that she delayed telling anyone until she was about 17 or 18 and she said that she did not tell her mother because she did not understand. She knew that what you were doing ought not be done but she did not know what to do. She was only four when these things happened. Cara Cooke said that she did not tell her mother when it happened because she did not think her mother would believe her and in cross-examination, she said being that young she did not really understand it but she knew what you were doing was wrong. Also, she did not know how to tell her mother, so she did not do so. She said she did not get along with her sister, Kristen, or Jessalyn very well whilst growing up and therefore she did not tell them. Jessalyn made her statement to the police on 21 February 2012 and Cara made her statement on 22 March 2012.
14 Each of the victims have provided the Court with a Victim Impact Statement that sets out in detail the effects of your offending on them.
15 Kristen Cooke states that she is now very reserved and lacks confidence and has difficulty in trusting people and developing new relationships. She suffers depression and anxiety. She feels guilty and sad knowing that it happened to her sisters as well and is angry that this happened. She thinks about this every day and it makes her feel sad, hurt and angry.
16 Cara Cooke finds it difficult to talk to anyone at all and does not trust anyone. This offending has affected her relationships, particularly with her partner. She has nightmares and does not sleep well. She is very distressed about the possibility of you interfering with her children. She has been diagnosed with anxiety and depression. Also the offending has affected her relationship with both her mother and her sister, Kristen. She is very distanced from them.
17 Jessalyn Cooke sets out the difficulties she has with intimacy. She feels anxious, nervous and scared. She too has difficulty trusting people. She is overprotective of her own son and has also been struggling with depression and on occasions has attempted commit suicide.
18 In sentencing you, I must impose just punishment. I must have regard to your age at the time of the offending. In particular, in respect to Charges 1 and 3, you were a child and, in the cases of Charges 4 and 5, a young offender and therefore your moral culpability would have been judged to be less if your offending had been dealt with at an earlier time. This is particularly so in the cases where the offences were committed whilst you were a child, and great weight would have been given to maximising your prospects of rehabilitation with the result that you may have been ordered to undergo a non-custodial sentence or you may have been sentenced to custody in a youth justice centre.
19 I have had regard to the decisions of the Court of Appeal in R v Nutter (unreported) 8 November 1995 (Charles and Callaway JJA and Vincent AJA) and R v Better [2003] VSCA 71 (Charles, Buchanan and Vincent JJA) and R v PJB [2007] VSCA 242. Those decisions recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done was done as a child, or a person of immature years, and not as an adult or a person of greater maturity. General deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults.
20 I accept Mr Wilcox’s submissions that the charges, being Charges 1 and 3, committed when you were aged between 15 and 16, were more in the nature of sexual experimentation and opportunistic offending. However, the latter offences, particularly those committed when you were aged 23, involving Kristen, are, on any analysis, serious criminal offending requiring a sentence adequate to reflect denunciation, general deterrence and just punishment and thus warranting imprisonment.
21 I note that none of your other offending, be it your prior criminal history and the subsequent matters, relate to offences involving sexual offending. They all relate to dishonesty type offending. That is probably reflective of your poor social circumstances, lack of employment and lack of any permanent accommodation.
22 Yours is a very sad and tragic history. Your background is set out in full in the report from Dr Deborah Bennett, Forensic Psychologist. Her report dated 5 March 2014 was tendered at the plea hearing. I do not propose to go into any great depth about your background. That was canvassed fully in the plea hearing. Suffice it to say that you come from an extremely dysfunctional family marked by an unhappy childhood that was marred by your mother being an alcoholic and having a succession of peer aged male partners, all of whom were violent alcoholics.
23 You felt and experienced a real sense of abandonment as a child, having been left and subsequently discovered by an uncle at one time and then placed in foster care for two years during which time you were assaulted physically. All but one of your mother’s intimate partners regularly physically assaulted you. You have only ever had limited contact with some of your half siblings and your strongest relationship has been with your step sister, Kristen. Between the ages of 13 and 30 you periodically physically assaulted your mother, were assaulted by her and you admitted on occasion physically assaulting your half sisters. You lived for the most part with you mother until you were about 18 and then lived in a variety of rental premises with friends, at various locations in Victoria and sporadically returned home to your mother’s for short stays. It was in this context that the offending occurred.
24 Sadly you were the subject of sexual assault during your childhood. As a seven year old your biological father and his then partner sexually abused you. Additionally, your mother’s partners physically abused you and one of your mother’s partner’s sons regularly physically and sexually abused you over a two year period. Another subsequent partner did not sexually assault you but regularly insisted you watch pornographic videos when you were a young boy. When aged between 12 and 14 another one of your mother’s sexual partners regularly sexually assaulted you, touching your genitals and insisting you respond in kind.
25 You have led a fairly peripatetic and chaotic life over the years. You attended numerous primary schools in different locations in Queensland and Victoria and you left school aged fifteen. You have very limited work history and eventually you were placed on a disability support pension because of your health issues, particularly your obesity. You have a personal history of abuse of illicit drugs commencing when you were 12, initially with cannabis and moving on to amphetamines and heroin. You acknowledge chronic drug and alcohol abuse, as well as persistent feelings of anger and despondency.
26 You formed a relationship with Sarah,[8] with whom you were engaged. She became pregnant and you have a child with her, Billie.[9] However, due to your being charged with this offending and also Department of Human Services involvement, that relationship has ceased. You remain very fond of your young daughter.
[8] Sarah is a pseudonym.
[9] Billie is a pseudonym.
27 You have problems with asthma and obesity, the latter causing leg ulcers and associated health problems. Obesity has been an issue since childhood. You also have prescribed medication for hypertension, asthma, depression, sleep abnormality and abscesses.
28 You believe that you have been diagnosed with bipolar disorder in the past. However, Dr Bennett was not able to confirm this diagnosis. You are very isolated in prison; neither family nor friends visit you. Dr Bennett considered after her testing that your behaviours are more indicative of anti social traits rather than sociopathic tendencies. On the information available to her, she considered the level of risk for sexual or re-offending to be moderate to low. She considers that is possible your plea of not guilty is indicative of a lack of victim empathy and lack of remorse. However, she postulates that it is just as likely your denial of this offending is motivated by intense shame and regret for your actions (especially given that, on some level at least, you must necessarily reconcile your own offending with being sexually offended against yourself) and also because you believe that an admission would deny you access to your daughter.
29 Dr Bennett is of the opinion that you can be best described as a regressed child molester rather than a preferential paedophile. She says:
“Such individuals do not have a genuine sexual interest in child. Rather they turn to available children as a sexual substitute.”
30 She did not consider that you had a preferential sexual interest in under age females and furthermore there is nothing to suggest that you meet the criteria for any other paraphilia (sexual deviation) diagnosis.
31 She says you qualify for diagnosis of alcohol use disorder, cannabis use disorder and opioid use disorder. She considers you are at an increased risk of suicide based on her assessment of your mental state; the fact that you are without emotional support and that you are unable to identify any future event to look forward to and have difficulty in identifying anything of value to do, puts you at increased risk of suicide.
32 She considers your risk of committing a sexual offence in the future is low. However, your risk of committing a general violent offence is moderate.
33 She recommends treatment for alcohol and substance use, and counselling with regard to the sexual offending that you have committed yourself and in coming to terms with the childhood to which you have subjected, managing your anger and propensity for physical violence. She further recommends trying to employ you in a occupation of value and that you identify realistic life goals and then determine a plan to bring those goals to fruition.
34 Overall, in sentencing you, I have regard to your age at the time of offending, the lapse of time since the commission of the offences and the fact that there has been no further sexual offending committed. I have had regard to your personal history and circumstances, in particular your history of substantial abandonment, neglect and sexual abuse as a child. Any sentence must reflect the seriousness of your offending and place some emphasis on general deterrence, but needs to be modified having regard to your circumstances in relation to the earlier offending when you were aged between 15 and 20.
35 I propose to convict and sentence you in respect to each of the offences. Where an offender is convicted of two or more sexual offences for which you have been sentenced to a term of imprisonment, you are considered to be a serious sexual offender. What this means is that the Court must have regard to protection of the community as being the principle purpose for which the sentence is imposed and in order to achieve that purpose, may impose a sentence longer than that which is proportionate to the gravity of the offending considered in the light of its objective circumstances.
36 Mr Jones, the prosecutor, did not seek a disproportionate sentence having regard to the particular circumstances of your offending.
37 Section 6E of the Sentencing Act 1991 says that every term of imprisonment imposed by a Court on a serious offender for a relevant offence must unless otherwise directed by the Court be served cumulatively on any uncompleted sentence or sentence of imprisonment imposed on the offender whether before or at the same time as that term. In the circumstances of this case I propose to direct otherwise.
38 The formal sentence of the Court will be as follows.
39 Charge 1 – 1 months' imprisonment.
40 Charge 3 – 3 months' imprisonment.
41 Charge 4 – 6 months' imprisonment.
42 Charge 5 – 18 months' imprisonment.
43 Charge 6 – 2 years' imprisonment.
44 Charge 7 – 18 months' imprisonment.
45 Charge 6 is the head sentence. The orders for cumulation are: 6 months of the sentences imposed with respect to Charges 5 and 7 are cumulative upon each other and upon the sentence imposed with respect to Charge 6, making a total effective sentence of 3 years' imprisonment.
46 Pursuant to s6F of the Sentencing Act 1991, it is declared that the prisoner has been sentenced in respect to Charges 4 to 7 as a serious sexual offender and it is directed that the fact of the declaration and its contents be entered into the records of the Court.
47 Pursuant to s18 of the Sentencing Act 1991, it is further declared that the period which must be reckoned as a period of imprisonment already served under the sentence is 124 days as of this day and it is ordered that the fact that that declaration has been made and its details be entered into the records of the Court.
48 I make the order for registration under the Sex Offenders Registration Act 2004 for life and I make the order for the taking of the forensic sample pursuant to s464ZF of the Crimes Act. Such order is in the interests of the community and is not opposed.
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