Director of Public Prosecutions v Cooper (a pseudonym)

[2022] VCC 1867

IN THE COUNTY COURT OF VICTORIA

AT BAIRNSDALE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID COOPER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2022
DATE OF SENTENCE:	26 October 2022
CASE MAY BE CITED AS:	DPP v Cooper (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1867

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Sexual penetration of a 16 or 17 year old child – Care, supervision and authority – Employer/ employee relationship – Suspended sentence – Class 1 offence

Legislation Cited: s 27, s 48(1) Crimes Act 1958 (Vic) – s 6AAA Sentencing Act 1991 (Vic)

Cases Cited:R v Clarkson [2011] VSCA 137 – Duncan (1998) 3 VR 208 – Worboyes [2021] VSCA 169

Sentence:  2 years and 6 months imprisonment – Suspended sentence – SORA reporting period of 15 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Ms L. Custovic
For the Accused	Dr M. Fitzgerald	Mr J. Harris

HIS HONOUR:

1Yes, in this matter of David Cooper.[1]  I also note that connected technologically today is the complainant Ms Bell.[2] Mr Cooper is 57, having been born in November 1964. He is a farmer and truck transporter and he resides in Lindenow South. The indictment which the Court was concerned with is no. [indictment number omitted]. There was one charge on that indictment which is a breach of s41(1) of the Victorian Crimes Act being sexual penetration of a child under the age of 16 or 17 while under the care, supervision and authority of the prisoner.

[1] A pseudonym.

[2] A pseudonym.

2The particular circumstances here was an employer/employee situation.  The period referred to is from 11/04 to 31/03/05, the victim as I have already referred to is Amy Bell.  The maximum penalty prescribed pursuant to the Act is 10 years' imprisonment.

3This is a class 1 offence to which the SORA reporting legislation applies. It has been agreed by counsel that the period of reporting given that it is a class 1 offence is 15 years.

4

The offending happened when Mr Cooper was aged between 39 and 40,

Ms Bell between 16 and 17.  Ms Bell is now 35.  It is clear from those figures that there was a significant age difference, approximately 23 years at the time of the commission of this crime.

5

Exhibit A was tendered by the prosecution as the prosecution opening dated

19 September 2022.  Such opening was accepted by Dr Fitzgerald as disclosing the facts upon which I am to sentence his client.  There is reference at [6] of that opening to an uncharged act which occurred prior to this offending.  The offending itself is described in [8] and [9] and involved sexual intercourse with the victim in this case.  The circumstances were that on this first occasion, which makes up the charge, the accused did not wear a condom and he ejaculated into the complainant's vagina.  To put the matter in context, as stressed by Dr Fitzgerald this being a charge as to the one occasion only, however it is accepted by way of context the relationship continued until Ms Bell obtained the age of 18 and ultimately when she moved to Tamworth in 2006.

6The matter was first reported in 2017, however Mr Cooper was not charged until 2020.  The agreement made to effect this plea was not determined until May or June of this year, and it is to noted that that was an agreement negotiated by counsel to the issue of a new indictment.  He now comes to be sentenced in 2022 some 18 to 17 years after the offending in this matter.

7Insofar as Exhibit B is concerned, the victim impact statement, I thank Ms Bell for allowing that matter to be read to the Court.  One attains from the statements that Ms Bell has made an understanding of what is the ongoing effect of sexual contact with a young child.  It is after all the basis of this legislation, that is, protection of young children from harm. In her statement she notes that Mr Cooper had taken away her innocence.  That she had not been protected by many of the adults around her and that as a result she has suffered from ongoing anxiety in relationships.  I stress again, I thank her for allowing her statement to be read in this Court.

8Again, the basis of this legislation is the presumption of harm where such situations occur, the prosecutor pointed out reference to such presumption in cases such as R v Clarkson [2011] VSCA 137, [3].

9Exhibit C was the prosecution submission as to sentence dated 3 October 2022.  In particular set out at [4] the relevant sentencing factors and the factors relevant to assessing the gravity of the offending are totally accepted by the Court and indeed were accepted by Dr Fitzgerald.  Fundamental of course is the breach of trust in the employer/employee relationship.

10I stress again that albeit the offence relates to one charge only, being the first day, their relationship thereafter was one which was of length and the relevance of course to this sentence is that this particular crime is one that is not isolated.

11Insofar as the Court had to consider matters, there was no pre-sentence detention and there are no priors.  The prosecution submitted at [16] that there is only one appropriate sentence and that is a period of imprisonment, albeit that it was submitted that given the timeframe of this offending a suspended sentence was an appropriate sentence and within the range of sentencing, given all the circumstances in this case.

12If I then come to Dr Fitzgerald's plea, I thank both counsel for the professionalism of their pleas.  Dr Fitzgerald began with an acceptance on behalf of his client of the seriousness of this offending, the appropriateness of a severe penalty in regard to that, and sought a just and appropriate sentence.  In Exhibit 1 which was the written outline filed on behalf of Mr Cooper, I note his personal circumstances set out at [9] – [15].  In particular I note the economic impact upon Mr Cooper of the floods in the Bairnsdale area and the impacts upon farming which have had a direct impact on his own occupation. 

13

The first matter put by Dr Fitzgerald was the early plea.  I accept in the circumstances of the new indictment that the principles set out by the

Court of Appeal in Duncan (1998) 3 VR 208, apply and I accept this as a plea made at the earliest opportunity. I also accept that such plea brings with it the benefits of utility, an indication of acceptance by Mr Cooper of his fault in this matter and also an indication of his remorse.

14In particular, pleas at this time when the legal profession is still beset with issues relating to COVID, with shortages of professionals indeed, as we have found at Bairnsdale, it has been very difficult in this circuit, indeed the first week of the circuit had to be abandoned and dealt with remotely, because of the difficulty of counsel.  I accept the reference of Dr Fitzgerald to Worboyes [2021] VSCA 169, [39], and I do give significance to the principles therein as to the enhanced work of a plea, during COVID and in particular the impact of COVID upon the justice system.

15Second matter was the proposition that I should accept that Mr Cooper is a good candidate for rehabilitation.  I have no problems with that and I have no doubt that this criminality was situational.

16Third matter is as to the issues that may well arise in gaol, the risk to his mental health, I note in this regard Exhibit 2, the report of the Psychologist, Sorotos, of September 2002 and in particular the reference at [118] thereof as to the crime being opportunistic, with which I clearly agree.

17Dr Fitzgerald also spoke as to the period of delay involved of 17 years.  It is accepted that this delay has not been the fault of Mr Cooper.  He now, as I have said, comes to be sentenced five years since the matter was recorded and two years since he was charged.  As put by Dr Fitzgerald this is a considerable factor to be taken into account in the sentencing in this matter, and indeed in these circumstances is an exceptional factor.

18Finally, I take into account the very strong character statements that were made on behalf of Mr Cooper.  Clearly, in regard to the submissions and the propositions put to the Court there was no issue given the seriousness of this matter and the intent of the Parliament that a sentence of imprisonment was the appropriate sentence.

19The real issue for the Court, which has required very close consideration was to balance the matters set out in the submissions of both counsel and spoken to in the plea, and to take into account the provisions of s27 of the Crimes Act as it then operated. I am satisfied pursuant to sub-s3 of s27 that the prison term I am about to impose is an appropriate sentence, in all the circumstances, for this crime.

20I further have decided pursuant to sub-s1 that in all the circumstances it is appropriate to suspend this sentence.  Mr Cooper, I have decided to give you a suspended sentence.  It is necessary for me to explain, pursuant to sub-s4 of the relevant section that the factors in the plea that led me to make this decision, are such that for the next two and a half years you will be placed in circumstances where you must not commit another offence.  It is necessary for me to warn you specifically, if in that two and a half years you committed another criminal offence and unless there are exceptional circumstances, and I stress exceptional circumstances, you will serve the balance of the period in gaol.

21Yes, Mr Cooper, I would ask you to stand up please?

22Mr Cooper, you will be convicted of a breach of s48(1) of the Crimes Act. For that offence, you will be sentenced to a period of imprisonment of two and a half years. Pursuant to s27(1) of the Crimes Act as it then stood, such sentence will be suspended for a period of two and a half years.  That means that you will not be subject to serving immediate imprisonment.

23

Pursuant to the SORA Regulations it has been agreed by counsel that you will be required to report under that legislation imposed by Parliament, which has nothing to do with the courts, but the agreed period is a period of 15 years.

 

Mr Cooper, given the COVID regulations, the only way we can get you to sign the document which you would normally sign now in court, is this document will be forwarded to your solicitors, and you'll be required to sign that document, a document to be sent back to the Court.  I don't know whether Mr Harris is in Court, but I'm sure he'll make sure that he takes care of that and that's sent back to the Court.

24Pursuant to s6AAA of the Sentencing Act, in the particular circumstances, doing as best I can to comply with the requirements of Parliament, all I can say is that had Mr Cooper not pleaded guilty he would not have received a suspended sentence.

25Does either counsel require me to clarify any matters in regard to this sentence?  I'll assume that means no from both of you?

26DR FITZGERALD:  Don't believe so, Your Honour.

27MS BURNETT:  No, Your Honour.

28HIS HONOUR:  Thank you.  Dr Fitzgerald and/or Mr Harris, probably Mr Harris will it be and I assume you're not down at Bairnsdale, Dr Fitzgerald.

29DR FITZERGALD:  No, I'm not, but Mr Harris is there.

30HIS HONOUR:  Yes.  Well, I'll ask Mr Harris to ensure that he stresses the explanation I've given pursuant to the Crimes Act, as to the obligations under a suspended sentence and make sure that Mr Cooper is well aware of the exceptional circumstances requirement which would apply should he further commit any crime.  I thank again, Ms Bell for provision of the victim impact statement and they're the only matters that I need to say.  Yes, thank you.

31DR FITZGERALD:  Can I just raise one matter Your Honour, it's been some time since I've dealt with a suspended sentence and I don't know whether or not there's a requirement to impose a non-parole period?

32HIS HONOUR:  No, there's not.

33DR FITZGERALD:  Thank you, Your Honour.

34HIS HONOUR:  All right?  Thank you, Doctor.  And thank you Ms Burnett.  Thank you for your submissions.  Yes.

35MS BURNETT:  Thank you, Your Honour and I hope Your Honour recovers from your accident.

36HIS HONOUR:  Thank you very much, so do I.  Thank you, yes Mr Tipstaff.

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