Director of Public Prosecutions v Cooper (a pseudonym)
[2022] VCC 1601
•19 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAYDEN COOPER (a pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 September 2022 |
DATE OF SENTENCE: | 19 September 2022 |
CASE MAY BE CITED AS: | DPP v Cooper (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1601 |
REASONS FOR SENTENCE
---
Subject: SENTENCE – CRIMINAL LAW
Legislation Cited: Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016; Sentencing Act 1991
Cases Cited:Reid (a Pseudonym) v The Queen (2014) 42 VR 295; Worboyes v The Queen [2021] VSCA 169; Verdins v The Queen (2007) 16 VR 269
Sentence:9 years and 4 months' imprisonment with a minimum non-parole period of 6 years and 4 months' imprisonment. S 6AAA: 13 years and 4 months, with a minimum of 9 years and 10 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Overend | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr Tan | SLKQ Lawyers |
HIS HONOUR:
1Brayden Cooper[1], you have pleaded guilty on Indictment M10569700 to
two charges of sexual assault of a child under the age of 16, for which the maximum penalty is 10 years' imprisonment and one charge of sexual penetration of a stepchild for which the maximum penalty is 25 years' imprisonment.2You have also pleaded to the related summary offence of committing an indictable offence on bail, for which the maximum penalty is three months' imprisonment.
3At the time of the offences the victim was your stepdaughter as defined by the
Crimes Act. She was born in January 2009 and was aged between
10 and 12 years at the time of the offending. You were aged between42 and 45.[1] A pseudonym
4The victim's parents divorced when she was six years old. In 2015 you began a relationship with her mother and the three of you lived together in a caravan in Werribee South and then in Werribee.
Circumstances of the offending
5The circumstances of your offending are set out in the Prosecution Opening, which was tendered as Exhibit A at the plea hearing.
6From the time you moved in together the victim thought of you, Mr Cooper, as her stepfather and called you, 'Dad'.
7Charge 1 occurred on an occasion when the victim was 10 years old and you were home alone with her. You and the victim were in your bedroom. You began trying to take off the victim's clothes. She tried to get away from you because it, 'didn't feel right', but she was unable to. You grabbed her and removed all of her clothes, leaving her naked. You made her lie on the bed. You took your pants off and lay on top of her. You began touching her with your hands all over her body, including on her breasts and vagina.
8In her VARE the victim said this felt, 'weird' because it, 'didn't look or feel right', and because her mother was not home. She tried to push you off but you were, 'too heavy'. She told you to get off and to stop. You continued to touch her. Afterwards you threatened her not to tell her mother, 'or else'. She went to her bedroom, closed the door and cried. This is a rolled-up charge encompassing touching the victim all over her body, touching her breasts and touching her vagina.
9Charge 2 occurred when she was 11 years old and still in primary school. Again, you were home alone with her. She was in her bedroom. You came looking for her. You were not wearing pants. You tried to open the door but she held it shut to try and stop you entering. You managed to open the door and then you grabbed her and took her to your bedroom. You lay on top of her and pushed your penis inside her vagina. She could feel your penis inside her vagina moving back and forth. She was yelling at you to stop and to go away. She tried to kick you and push you off her, but you were too heavy for her. You continued to penetrate her until you ejaculated in her vagina.
10She went to the bathroom and saw, 'white stuff', on her vagina. You told her not to tell her mother. She asked you why you had done this and what it meant. You told her not to worry and otherwise did not answer her.
11Around January 2021 the victim's mother overheard you talking to her about helping with her tampons. She asked you about the conversation; you told her you had helped the victim with her tampon on only one occasion. She told you not to do this again.
12On 9 March 2021, when the victim was aged 12, she was in the bathroom, facing the mirror and moisturising her face. She had just had a shower and was wearing her pyjama top and shorts. You approached her from behind and began touching her body. You put your hand down the front of her pyjama shorts and touched her breasts and vagina on top of her clothing. You grabbed the victim when she tried to move away. She tried to push you away and push your hands away but you were too strong for her. This is the basis of
Charge 3, a rolled-up charge, and also the related summary offence of committing an indictable offence on bail.13Around this time the victim told a friend at school that you had been touching her and that she did not know what to do.
14On 16 March she told her school counsellor that her stepdad had been sexually abusing her. The victim's school contacted police and protection authorities.
15Police conducted a VARE on 18 March 2021, in which the victim said:
·You would touch her on her private parts without her consent and when she did not want you to, and that you would do this when her mum was not around;
·The incident which formed the basis of Charge 3 was the last time you had touched her;
·That there were other instances of sexual touching that she could not recall in detail, saying it was, 'just all the same over and over';
·That you normally touched her entire body and that she always tried to move your hand; and
·That she never told anyone except her friend and counsellor from fear you would do something to her mother and brother if she did.
16On 18 March 2021 in a pretext call you said to the victim’s mother:
·You probably started it;
·It started two years ago when you and the victim were mucking around; you touched her and it was a, 'proper touch';
·You, 'never forced her';
·The victim never asked you to touch her.
17You were arrested and charged on 18 March 2021 and interviewed at Werribee by police. During that interview:
·You made admissions to touching the victim, laying on top of her, engaging in sexual activities, playing with the victim, rubbing her vagina, touching her vagina with your tongue and rubbing your penis on her vagina until ejaculating onto her stomach;
·You said that you and the victim called it a, 'special cuddle';
·When asked when it occurred, you responded, 'when I want something';
·You denied ever taking off the victim's clothes, but said that she would sometimes take her clothes off;
·You said you never forced her and, ‘if she says no, I won't do it', but that, 'she's never said no'. You said she, 'don't wanna stop…I don't force her'. I pause to note this is contrary to the agreed facts in this case;
·You denied putting your penis inside her vagina and saying that it has never gone in because it does not fit;
·You acknowledged, 'I know I broke the law and I know I'm going to pay the consequences. I know I'm fucking stupid. I knew what I done wrong'.
Victim impact
18Victim impact statements were tendered from the victim and her father.
19The victim said that because she was young, she did not know what your conduct meant, but she felt it was wrong and she was scared. After the offending she had nightmares and she was scared it would happen whilst she was asleep. At school her concentration was affected. She said you had hurt her emotionally and mentally. She has clothes she used to wear but does not want to wear any more and she cannot even look at them. She now judges people and does not trust men anymore. She feels uncomfortable when men look at her and she has a different view of men because of your offending. She mentioned having to talk about what you did to police, counsellors and
Child Protection, and said she did not like doing that. She said she is scared of going out alone at night and hates being around men.20Her father said that the day he found out about your offending he was angry and shocked. He said it was hard watching his daughter go through this. He said his daughter was down and depressed all the time and he knew there was not much he could do other than just to be there for her. This made him feel helpless. He said he felt in some way that it was his fault that he did not protect his daughter from your offending. He said he feels like he failed his daughter. Although he knows that it is not his fault, he finds it hard not to feel that way. He said his daughter has self-harmed on a few occasions. He can no longer trust any man or boys around her, and it has killed his ability to have faith in people. He described your offending as the most disgusting, horrible thing that could ever have happened to her.
21The impact of your offending has already been substantial and will no doubt be enduring. The impact on the victim and her father is a significant matter in a case such as this.
Gravity
22The offences in this case are all inherently serious, as reflected by the maximum penalties and standard sentences.
23In the case referred to by the prosecution of Reid (a Pseudonym) v R,[2]
Priest JA said of offending such as this at [83]:“Incest is often a crime where the vulnerable, who are worthy of protection, are exploited by those entrusted with their care. It is now seen to be a crime which — when perpetrated by an adult parent (or step-parent or grandparent) against a child — is erosive of human relations, the prominent features 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 and fundamental damage to the victim.”
[2](2014) 42 VR 295.
24These comments are obviously pertinent to the offending in this case.
The legal prohibition on sexual activity with children is intended to deter such conduct. The law presumes that long lasting and serious harm, both physical and psychological, will result from offending such as this. The harm the victim has already experienced is clear and there is no reason in this case to draw any conclusion other than the damage you have done to her is likely to be ongoing.25The circumstances in this case include several aggravating features: the age disparity was substantial; the victim was very young at the time of the offences; the breach of trust in relation to the victim, her mother and her father was profound; and the circumstances of each offence were very serious. Whilst consent could never be mitigating in circumstances like these, the continuation of the offending in the face of resistance is aggravating.
26Charge 1 was a serious example of a sexual assault offence against the victim which took place in her own home, when she was just 10 years old. The
rolled-up charge encompasses touching her all over her body and separately on her breasts and her vagina in circumstances where you had removed all her clothes and your pants. You took the opportunity to offend when your partner, the victim's mother, was not at home. You continued touching the victim after she tried to push you off. You attempted to secure her silence by threatening her not to tell her mother or else.27Charge 2 is the most serious of the offences. You offended notwithstanding that the victim tried to stop you entering her room by closing the door. You had
already removed your pants. You picked her up and took her to your bedroom. You then sexually penetrated her until you ejaculated inside her vagina. You did not use a condom, exposing her to the risk of pregnancy and disease. During the offending she was resisting and attempting to stop you. The victim saw semen on her vagina and was confused, asking you why you did what you did, and what it was, and what it meant. Again, you told her not to tell her mother. She was only 11 years old when you committed this offence.28Charge 3, when the victim was 12 years old, was, in my opinion, factually the least serious of the three offences, but nonetheless a serious sexual offence against a 12‑year-old child involving some similar features to Charge 1.
29The agreed facts in this matter contain references to other sexual misconduct; indeed, you made admissions to other misconduct. The prosecution relies on this material for context. You are not to be punished for these matters; they are not aggravating circumstances, but it cannot be said that the three incidents which give rise to the charges were isolated incidents.
30You offended for sexual gratification. You knew it was wrong. You understood the gravity of the breach of trust involved. Although you have a low IQ and are a concrete and simplistic thinker, which I have taken into account, your moral culpability is still substantial for this very serious sexual offending.
31The prosecution submitted that your offending was in the medium range for offending of this kind. Mr Sawyer, your counsel, accepted this characterisation. I accept that each of the offences falls into the mid-range.
Personal circumstances
32I turn now to your personal circumstances which are set out in the defence submissions and the two psychological reports tendered from Dr Matthew Barth and Mr Martin Jackson.
33You are now 46 years old. You were born and raised in Griffith in
New South Wales. You have two siblings. You have some limited contact with your younger sister, who calls you every few weeks. I am told you also have limited contact with your father by phone. Both your sister and your father live in New South Wales. Your mother died from cancer approximately 10 years ago.34You instructed your counsel, Mr Sawyer, and reported to the psychologist,
Mr Jackson, that when you were 13 years old you were raped by an unknown male. This matter was never reported to the police, although you said you received some counselling. Mr Sawyer did not submit that this matter has any significance to sentencing principles in this case. The circumstances of this matter are not clear and it is difficult to know what weight one might allocate to it as a personal circumstance without something more concrete relating to the incident you described to Mr Jackson. Nevertheless, I have had regard to it as part of your personal circumstances and together with your lower level of intelligence and its relevance to the assessment of your moral culpability.35You went to Griffith High School and you failed to complete Year 9. You described ongoing cognitive difficulties throughout your life, resulting from head injuries sustained in a car accident and playing rugby. You described having a poor memory. The psychological report from Mr Jackson excluded an acquired brain injury in your case. If there was such an injury as a child, it has resolved.
36IQ testing conducted by Mr Jackson has you in the borderline range, with a
full‑scale IQ of 70. Dr Barth described you as a concrete and simplistic thinker. Your low level of intelligence does not justify a reduction in moral culpability via the application of Verdins[3] principles but as I have said, it cannot be ignored in the assessment of your culpability.[3]Verdinsv The Queen (2007) 16 VR 269
37You have always been employed since you left school. You have worked as a painter, a fruit picker, and a labourer. You have a heavy rigger's licence. Your most recent employment was with an ice cream company, where you worked as a forklift driver, storeman and general labourer for seven years. You were remanded in custody for this offending, and you lost your job there as a result. You have a job in prison, in the kitchen, working from 8.00am to 3.30pm.
38You were married in 1999 to a woman named Joanne[4], with whom you had
two children. Your marriage lasted for around 13 years, ending in 2012. Your children are now aged 18 and 15. You have no contact with your first wife or your two children.[4] A pseudonym
39You have a three-year-old son with the victim's mother. Apparently, you were in phone contact with her for some period after you were remanded in custody, but this has now stopped. You believe she is now in a new relationship.
Guilty plea
40You pleaded guilty at the committal mention in this matter on 20 August 2021. I accept this was a plea at the earliest opportunity.
41Your plea has substantial utilitarian value. You have spared the witnesses, particularly the victim, the ordeal of having to relive these events whilst giving evidence. You have saved the court the resources involved in running a trial. You have pleaded guilty at a time when the court faces a very substantial backlog of trials resulting from the suspension of jury trials during the pandemic. The increased utilitarian value of a guilty plea in the current environment was recognised in the decision of Worboyes[5] and I have applied the principles outlined in that case. You are entitled to a palpable amelioration of the sentences to be imposed.
[5]Worboyes v The Queen [2021] VSCA 169
42Your plea indicates remorse and a willingness to facilitate the course of justice. You are entitled to a significant sentencing discount because you have pleaded guilty.
43I take into account the fact that the time you have spent on remand, waiting for this matter to be finalised, has been served under the restricted conditions that have prevailed in prisons in response to the pandemic. Such restrictions may be ongoing. Visits for a time were suspended and programs have been restricted. This increases the burden of the period you have spent in prison and will potentially impact any further time you are required to serve.
Remorse and rehabilitation
44In addition to your guilty plea, I accept there is other evidence of remorse. You made substantial admissions in the record of interview, although you put forward an explanation based on consent and denied the sexual penetration offence. You said in the record of interview that you knew that what you had done was wrong and that you would have to pay the consequences. You also told Dr Barth, 'I know I did wrong. It's so fucking stupid what I've done. She looked up to me and I've ruined her life'.
45I do accept that you have remorse for your behaviour.
46Although you have shown remorse for your offences, it is clear from the psychological reports tendered that you have great difficulty discussing your motives for the offending. What emerges from the reports is that your interpersonal and sexual adjustment remains dysfunctional and you only have limited insight into your behaviour.
47Dr Barth conducted a risk assessment and said that your overall risk of sexual
re-offending is at best estimated to fall in the at least, 'moderate', risk category. Having regard to the seriousness of the offending and the risk assessment, I view your prospects of rehabilitation as guarded. Although you have some prior convictions and therefore you do not come before me as a person who has led an unblemished life, the prior convictions are of no real significance to sentencing principles in this case. You have no prior convictions for sexual offending, and you have shown remorse, which does provide some optimism for your prospects of rehabilitation.
48Mr Sawyer, on your behalf, submitted that principles 5 and 6 of the case of
Verdins apply. He made this submission based on Dr Barth's opinion that you suffer from a major depressive disorder with anxious distress with recurrent episodes of moderate severity. You are on medication in the prison. Dr Barth said that there is a risk of further deterioration in your moods in the immediate aftermath of sentencing. He said you require comprehensive psychological treatment and support.49I can only give limited weight to principle 5 in circumstances where there is no direct evidence that this condition has increased the burden of your imprisonment, although as a matter of common sense I accept your psychological conditions have had some adverse effect on the burden of your imprisonment and will continue to do so for at least some time. I also give some weight to principle 6, based on the opinion of Dr Barth that there is a risk of further deterioration in your moods in the immediate aftermath of sentencing. In this case though, these are mitigating factors of only moderate weight.
Standard sentence
50Charges 1 to 3 are standard sentencing offences, pursuant to the Sentencing Act. The standard sentence for sexual penetration of a stepchild is ten years' imprisonment and sexual assault of a child is four years.
51The standard sentences operate as a yardstick only and are applicable to an offence in the mid-range of seriousness, only taking into account its objective features. A standard sentence is not a mandatory sentence; nor the primary sentencing consideration; or the starting point from which to add or subtract time. It is just one of the many matters I must take into account in deciding the appropriate sentences.
52In this case the sentences I have imposed are all lower than the applicable standard sentences.
53For standard sentence offences I am constrained from fixing a non-parole period lower than 60 per cent of the head sentence unless it is in the interests of justice to do so. I am not of the view that there are any factors in this case that would justify a non-parole period below 60 per cent.
54In respect of standard sentence offences, in considering current sentencing practices, I must only have regard to sentences imposed since the introduction of the standard sentencing regime. In this case the prosecution brought to my attention two County Court sentences imposed for standard sentence offences involving comparative offending. These cases are only comparative cases. They are not precedents. There are distinguishing features between this case and those that have been brought to my attention. I have had regard to current sentencing practices, which again are just one of the many matters I must consider. They are a guide but not a controlling factor.
Serious sexual offender provisions
55You have been convicted of three sexual offences, and for each you will be sentenced to a term of imprisonment. You therefore fall to be sentenced as a serious sexual offender on Charge 3, pursuant to Part 2A of the Sentencing Act. The consequences of the serious offender provisions are that I am required to consider protection of the community as the principal sentencing purpose for that charge, and the totality principle is modified but not excluded by the statutory presumption of cumulation for that offence. In relation to Charge 3, you were on bail at the time of its commission which also reverses the statutory presumption.
Totality
56The totality principle requires that the overall sentence must be just and proportionate to the total criminality of your offending. To comply with this principle, significant concurrency between the charges is necessary. There is tension between the presumption of cumulation under the serious
sexual offender provisions in respect of Charge 3, and the totality principle. The totality principle must be considered having regard to the presumption of cumulation, but it is not displaced and remains important in a case such as this.57General deterrence, that is the need to send a message to others who might be minded to offend in the same way, that severe punishment will follow conviction, is of substantial importance for offending such as this. Further, the community rightly regards offending such as this as abhorrent and through my sentence I must denounce your offending. The sentence I impose must also reinforce to you the consequences if you were to ever commit sexual offences again.
58I must also have regard to your rehabilitation. The non-parole period is the minimum period of imprisonment that justice requires. In fixing a non-parole period, punishment is mitigated in favour of rehabilitation. I have allowed for a not significant period of parole to facilitate your rehabilitation and ultimate reintegration into the community.
Sentence
59Mr Cooper, you are sentenced as follows:
·In relation to Charge 1, sexual assault of a child under the age of 16, you are convicted and sentenced to three years' imprisonment;
·In relation to Charge 2, sexual penetration of a stepchild, you are convicted and sentenced to seven years and eight months' imprisonment;
·In relation to Charge 3, sexual assault of a child under the age of 16, you are convicted and sentenced to two years' imprisonment. In relation to Charge 3, pursuant to s6F of the Sentencing Act, it will be noted in the records of the court that you are sentenced as a
serious sexual offender in respect of this charge;·In relation to the summary offence of committing an indictable offence on bail, you are sentenced to seven days' imprisonment.
60I make the following orders for cumulation: the base sentence is Charge 2;
12 months of the sentence on Charge 1 and 8 months of the sentence on
Charge 3 are cumulative on each other and on the base sentence, which makes a total effective sentence of nine years and four months' imprisonment. The minimum term you are required to serve before being eligible for parole is
six years and four months' imprisonment.61Just bear with me for a moment. Pursuant to section 6AAA of the
Sentencing Act, the sentence I would have been imposed but for your plea of guilty would have been thirteen years and four months, with a minimum of nine years and ten months.62Pursuant to section 18 of the Sentencing Act I declare 551 days as pre-sentence detention to be deducted from the sentence that I have imposed.
63There are no other orders required? Mr Tan?
64MR TAN: No, Your Honour.
65HIS HONOUR: All right. Those are the orders that I make in this case.
- - -
0
3
0