Director of Public Prosecutions v Cooper (a pseudonym)
[2016] VCC 661
•19 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYAN COOPER[1] |
[1] The name of the Accused has been allocated a pseudonym to protect the identity of the victim pursuant to section 4 of the Judicial Proceedings Reports Act 1958 (Vic)
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial: 23, 24, 25, 26 February 2016; 1, 2, 3, March 2016 (Warrnambool) Plea: 11 April 2016 (Melbourne) |
| DATE OF SENTENCE: | 19 May 2016 |
| CASE MAY BE CITED AS: | DPP v Cooper (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 661 |
REASONS FOR SENTENCE
---Subject: Sentencing; attempted rape, rape and indecent act with child under 16
Catchwords: Jury verdict; offending against step-daughter; 9 years ago; no prior sexual offending; effect of suffering depression
Legislation Cited: Sentencing Act 1991 (Vic) s 6F
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
Sentence: 720 days imprisonment followed by 3 year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | OPP |
| For the Offender | Mr J. Desmond (trial) Ms C. Randazzo SC (on plea) | Clarke and Barwood Lawyers Pty Ltd |
HER HONOUR:
1Bryan Cooper[2], you have been found guilty by a jury on five charges - two of attempted rape, one charge of rape, and two charges of indecent act with a child under the age of 16.
[2] The name of the Accused has been allocated a pseudonym which has been used throughout to protect the identity of the victim pursuant to section 4 of the Judicial Proceedings Reports Act 1958 (Vic)
2The maximum penalty for rape is 25 years' imprisonment. For each charge of attempted rape the maximum penalty is 20 years' imprisonment. For each charge of indecent act with a child under 16 the maximum penalty is ten years' imprisonment. You will not be receiving a sentence as high as any one of those maximum penalties, but I must take them into account as reflecting the relative seriousness with which Parliament on behalf of the community regards offences of these respective types.
3The offending was all alleged to have occurred in the period between 1 August 2006 and 31 July 2007. During that period you were living in a house on what had been your family's dairy farm in Western Victoria, with your wife and daughter, and with your step-daughter, who was your wife's child by a previous relationship. Your step-daughter had lived with you at least since your marriage to her mother in 2000. The offences were all committed against her, and she was aged 11 to 12 during this period.
4These charges arise out of four separate occasions during the period, although dates remain unclear, as does the approximate timing between the occasions. By its verdicts the jury must have accepted that on each of these occasions you did commit the sexual acts described by your step-daughter. I must sentence you on the basis that even though you continue to deny that these events ever occurred, a jury has found beyond reasonable doubt that they did.
5All of these events are said to have occurred in the family home. In each instance of attempted rape, that is under Charges 1 and 3, these arose after you had asked your step-daughter to come to your bedroom to wake you from an afternoon nap and these being occasions when your wife was not home, although your daughter, your step-daughter's younger sister, was.
6On each occasion your step-daughter entered your room, found you naked in bed, and when calling out failed to wake you, she approached the bed and you pulled her down onto the bed with you. On each occasion you lowered her pants and she felt your hand between her thighs and you attempting to penetrate her vagina with your finger. On each occasion she resisted and you did not penetrate her, so each is a charge of attempted rape. On the second such occasion as you lay beside her after the attempt you took her hand and held it on your erect penis, moving it up and down, and this conduct gives rise to Charge 5 of indecent act with a child under 16.
7On a third occasion, after again asking your step-daughter to wake you from an afternoon nap, you not only pulled her onto the bed but while holding her down took some lubricant from a bedside table which you rubbed on your hand and fingers, and this time you inserted your finger into her vagina. This is the subject of Charge 6 of rape.
8The final charge, Charge 8, of indecent act with a child under 16, arises from a separate and different occasion from the others. Your step-daughter awoke one night to find you lying in her bed behind her. She said her pyjama pants had been pulled down to her knees and you were pressing against her with your erect penis between her thighs. As I have said, that is the basis of Charge 8 of indecent act with a child under 16.
9These events did not come to light until some years later. It was in late 2011, during a period in which you and your wife were undergoing substantial financial and also marital problems, that you found out that these allegations were being made. Your step-daughter had made complaints about your actions to a school counsellor and then to a friend who was a worker on the farm and then to your wife.
10You were arrested by police on 19 February 2014 on these charges. You participated in a recorded interview on that day, during which you denied all allegations of such offending as were put to you. You continued to defend the charges throughout the trial, disputing that these events had ever occurred. That was your right and you do not receive a more severe sentence for doing so, however you do not receive the leniency to which you would have been entitled had you pleaded guilty.
11Moreover, as you deny that these incidents occurred, you have no explanation to offer for your motivation or any factor that might have precipitated the offending conduct which the jury found did occur.
12Offences of this type are heard repeatedly in this court but that does not make them any more acceptable to the community in general, nor under the law. Sexual offending against children is strongly condemned by the community and when it occurs within a family setting, in particular a family home, there is the additional aspect of the conduct being a breach of trust towards a child under the adult is supervision and protection.
13Your step-daughter ought to have been able to rely on you for protection, rather than be required to satisfy your sexual desires or inclinations. This offending breached not only the prohibition on sexual conduct with children under the age of 16, but as she was your step-daughter it was technically also incest, for Charge 6, although there were alternative charges to that effect on the indictment and the jury convicted you in each instance of the first charged offence for each piece of conduct which respectively were attempted rape on Charges 1 and 3 and rape on Charge 6.
14I have read your step-daughter's Victim Impact Statement and shall not repeat it in detail as she asked that it not be read out in court. I take into account that both at the time and since she has experienced emotions of hurt and of anger at not being believed, and that these emotions have impacted over many years of her life.
15She has had medication prescribed for mood disorder. She has been nervous of whether she might see you and be reminded of her experiences. Her relationship with her half-sister, your daughter, has been more difficult and she says she feels guilt for the impact of her disclosure on her sister. Your offending against her so long ago still has impact on her current life and she says on her current intimate relationship.
16I accept that the impact on a child who experiences sexual offences can be significant to their emotional development, to their lives at the time and can last for many years afterwards, as described in that victim impact statement.
17I have also read Victim Impact Statements from your now estranged wife, and from your daughter. Your wife says she has been emotionally affected resulting in her mistrusting people around her, especially male friends, and she also feels guilt for what happened to her daughter at your hands. She says she suffered depression and anxiety requiring medication increases, has undergone counselling, and is more socially isolated than she was. She says that the effect on her moods has impacted her ability to work full-time and that there have been financial consequences to her as a result.
18She says she feels hatred for you for undermining her family and both of her daughters. She says that all of these matters have caused her inability to sustain full-time work, as I have already said. I am aware that there is an ongoing property dispute on dissolution of your marriage with her, so I make no specific findings about and place less weight on issues of alleged financial impact. I accept that overall she has been emotionally impacted by the uncovering of these events.
19Your daughter's Victim Impact Statement describes her emotions. She says she gets angry and upset easily, and especially if you are mentioned. She says she has missed out on activities due to the need to be with her mother, and more particularly due to financial reasons that her mother can't afford them. She has obviously been significantly impacted by the emotional pulls of you being her father, and the victim of your offending being her sister. Hopefully her efforts at school in order she says to work hard to try to go to university will be successful, and help her re-establish her life and its goals.
20Your offending clearly had significant impact on your family as a whole. I am aware that there were other pressures on your marriage at the time that these events came to light, but I accept that these events have contributed to the breakdown of your whole family life.
21Offences in these circumstances call for sentences to unequivocally condemn such conduct, impose just punishment and stand as general deterrence to other people who might be tempted to engage in similar conduct and send the message that it will attract severe penalty. Offences of this nature also often call for protection of the public, although as I shall explain I do not regard that as of high significance in this case.
22I turn next to your personal circumstances. You are now aged 38 and were about 29 or 30 at the time of the offending. You grew up on your family's dairy farm and left school in Year 9 to start a farming apprenticeship. I gather that you worked on the family farm until it subsequently had to be sold.
23You married in 2000, and your wife's daughter came to live with the both of you in a house on your family farm. Your own daughter was subsequently born and I gather that you had a good relationship with her, that is your daughter, until these matters came to light when great strain was placed on all relationships in the family.
24Tragically your father committed suicide in August 2006. I am told that occurred by him shooting himself. He was aged in his mid-50s and this was against a background of his suffering from depression and being in deep debt.
25You, yourself, may well have been suffering from depression or depressive symptoms prior to that, but it is not surprising that following that event you suffered from depression yourself.
26You remained, and still remain, close to your mother. Following your father's death an arrangement was reached whereby your mother moved to live away from the farm. You and your wife borrowed heavily to buy the farm from your father's estate, thereby giving financial means to your mother to buy herself a home elsewhere. That meant however that you took on very substantial debt. Following that you were running the farm yourself with a hired farm hand who also lived on the property. This of course involved you in long and hard hours of work, and I accept on the balance of probabilities that you would have continued to be considerably affected by your father's death and its circumstances and dealing with the financial implications for the farm.
27Apparently it was not long after you had bought the farm that milk prices dropped very considerably, and this put you into serious financial difficulty and your marital relationship struggled from then onwards.
28The precise timing of the offences that bring you before this court is unknown. It has been placed in time by your step-daughter to be in the period after your father's death and during approximately the one year period after it.
29It is the opinion of Dr Walton, consultant psychiatrist, who assessed you and provided evidence on your plea hearing, that you would have been suffering depressive symptoms and the time when the offending is alleged to have occurred. Whether or not the currently diagnosed condition of Major Depressive Disorder was present, I accept that whatever the precise designation you were suffering from a mental illness recognised under DSM 5, and that it is likely that through the combination of the circumstances of your father's death and the debt in which you found yourself you were indeed suffering from depression. You had not sought any treatment for your mental health issues at that stage so it would have been untreated as one hears such conditions often are in farmers.
30You have no history of illicit drug use, nor of abusing alcohol.
31In late 2011 your marriage was under very considerable strain. It was at about that time that your step-daughter reported the subject of these charges to a school counsellor, and subsequently also to your farm worker, and her mother, and you became aware of her allegations.
32The financial situation was such that you had reached the decision that it was necessary to sell the family farm. In December 2011 you made what appears to have been a serious attempt at suicide. On 20 December you were flown to the Geelong Hospital under emergency conditions after being found semi-comatose, having taken an overdose and not being found for two days afterwards. Dr Walton examined the hospital records from your admission and classifies this as a serious attempt at suicide. His opinion is that you would have been significantly depressed at the time of this attempt. However it also appears that after your release from hospital there was no ongoing follow up or treatment for your depression.
33What I take to be shortly after your release from hospital, a sale of the farm was achieved but only by way of a vendor terms contract, in early 2012. Although there was an initial down-payment and ongoing monthly smaller payments, the balance was to be paid over a five year period with a substantial final sum. Apparently nearing the end of that five year period, at the beginning of this year, the contract has fallen into arrears and will not be completed. In particular the purchaser is unable to make the substantial final payment which was being relied upon to pay off your debt to the bank from which it was borrowed, and I take it also to ultimately be the subject of the property settlement between you and your wife.
34Although your wife and you separated in early 2012, at about the time or soon after the sale of the property and the family had to move out, there has apparently being ongoing dispute between you and her as to the final property settlement, and you both still formally own the heavily mortgaged farm with the added complication of the sale which had been on foot now being unable to be completed.
35On leaving the farm in about February 2012, you separated from your wife, and your daughter and step-daughter went to live with her. You have a close relationship with your mother but have borrowed from her in effect by raising money against the mortgage on her house to help pay your legal fees. That, no doubt, has created further strain and worry for you.
36I am told that since the family separation and leaving the farm, you have worked as a dairy farm hand, for wages, which has no doubt involved long hours and limited income stream. You have started a further relationship. You are now living in rented accommodation in western Victoria.
37I have read a report from Dr Walton, and as I have already said, heard oral evidence from him during the plea hearing. He diagnoses you as currently suffering from chronic major depressive disorder. He believes the origin of that illness likely reaches back to the suicide of your father, and notes that in fact both of your parents were afflicted by depression which probably indicates a genetic predisposition for you.
38He gives the opinion, which I accept, that you require anti-depressant medication as a matter of relative urgency, and that you should be assessed by a psychiatrist in that regard, and also should be assessed for ongoing counselling treatment. He is of the opinion that you would endure any period of imprisonment as more onerous because of your ongoing depressive condition. Even though what he describes as minimally adequate psychiatric treatment in the form of medication could be provided in custody, more supportive psychological counselling which he believes is required in your case, is more scarce under current conditions in the Victorian prison system.
39Dr Walton notes that in prison you would be required to undergo sex offender treatment programs and that there was no particular reason why you ought not be able to apply yourself, from a psychiatric perspective, to any such program or order for it.
40Dr Walton's opinion is relied upon as sufficiently linking a mental health condition at the time with the offending so as to enliven legal principles set out in the case of Verdins which if enlivened would lead to reduction in the application of a number of the more serious sentencing factors that I have outlined would usually apply in a case such as this.
41The prosecution disputes that there should be any reduction in the need for general or specific deterrence in your case, nor in the assessment of your moral culpability for your offending.
42Dr Walton was asked for his opinion as to any causative connection between any condition he believes you suffered at the time and your offending. He conceded that he cannot assert a clear causal connection between your offending and the mental disorder which he finds it is likely you were suffering, namely depression. However, he put forward a hypothesis that might create such a link. He noted that it is well recognised that persons suffering significant depression are prone to exercising poor social judgment, as well as engaging in what ultimately is self-destructive behaviour. His hypothesis was that if you were depressed in the period after your father's death, as he is satisfied was likely, symptoms such as lowered mood, feelings of guilt, sense of hopelessness, and possibly impaired cognitive function, may have led to a sense of recklessness and so these consequences could have contributed to your committing these offences.
43He acknowledged that because you do not acknowledge that the offences occurred there are considerable limits on his reaching conclusions as to a causative link. Asked to distinguish whether the hypothesis he put forward was a possibility or a probability, he said it was merely possible. However, while he could not say that there was a strict causal connection, which I took to mean not a direct cause of the offending, and noting that there was the additional difficulty in that you still deny the offending, but working from the extent of your depression evidenced by your serious suicide attempt in December 2011, he was prepared to say that he thought that indirect connection or contribution to the offending from your mental disorder at the time was probable. He said this conclusion was that it was probable but “on a fairly fine line”.
44Based on Dr Walton's opinion which tipped the balance just into the probable range of there being a causal although indirect connection, between what he considers to have been likely existing symptoms of depression and this offending, your counsel submits that I should find such a connection, and having found it accept that it should lead to moderation of my assessment of your moral culpability for this offending. That is under what lawyers call the first principle in Verdins case.
45The prosecution challenges that connection, both as to whether there is sufficient expert evidence to establish on the balance of probabilities that you were suffering such a mental health condition at the relevant time, and as to whether there was what has been called “a realistic connection”, namely that such a condition caused or contributed to your offending.
46I am satisfied on the balance of probabilities that in the months following your father's death, which is how your step-daughter pinpointed the approximate timing of the offending, you would have been likely to be suffering both stress and depressive symptoms. Your family history, as well as personal subsequent history of a serious suicide attempt, and in light of Dr Walton's opinion, satisfies me that it is likely that you were suffering depressive symptoms during the offending period.
47I am prepared to accept as more likely than not that this would have impaired your ability to think clearly about many matters that might have arisen, including impulsive feelings. To the extent that you were likely to have been suffering a mood disorder at the time, I accept that the application of general deterrence should be reduced in relation to your offending, although overall in my view not very substantially reduced.
48However, despite the “fine line” conclusion of Dr Walton that he would say that it was probable that your depression contributed to your offending behaviour, I am not satisfied that there is sufficient evidence of that. In particular, this is posed only in hypothetical terms, because issues of whether when depressed you personally have those hypothesised reactions such as acting impulsively or more recklessly has not been established. Even the suicide attempt some years later, while possibly consistent with such reactions, is in my view equally consistent with other causes, and this has simply not been sufficiently analysed in my view in the evidence before me.
49The fact that you deny that the events occurred makes much harder any such conclusion, that is of a causal connection, because you can offer no description of how you were feeling at the time or what might have been your motivation for such conduct.
50I do accept from the evidence of Dr Walton that you currently suffer from chronic Major Depressive Disorder. I accept his opinion, which was not challenged by the prosecution, that that condition is likely to make the enduring of imprisonment harder for you than for a person not suffering from that condition, and I have taken that aspect of his opinion into account in some mitigation under another of the principles in Verdins’ case.
51It seems to me that given your history there is also a risk of your depressed mood being exacerbated by imprisonment, and possibly leading to a further attempt at self-harm although it is to be hoped that does not occur. I have also regarded that as mitigatory.
52I take into account that you have no relevant prior convictions. You do have some offending in your past, but a number of years prior to your marriage, meaning many years before the offending that brings you before me, and none involving sexual offending or offences against children.
53You appear to have worked hard all of your life, having been raised on a farm, run the family farm while you could, and ultimately still working as a dairy farmhand. I accept that you have been living for the last few years under huge financial strain, but also the emotional strain of having had to sell a farm that had been in your family since your grandfather's time, and with the break-up of your marriage and strain in the relationship with your daughter due to these allegations. There is no suggestion that you ever behaved inappropriately towards your daughter in any sexual manner.
54In the circumstances, although you will no doubt be assessed as posing some risk using the various assessment tools that are applied in this field, there is nothing to indicate to me that you are a significant risk of sexual offending in the future, and it is for that reason that I said earlier that I do not regard protection of the public as carrying a significant role in the sentence I have decided to impose.
55I have also read character references from friends of yours who have known you many years. They either state they do not believe you committed these offences, or describe them as out of character for you. They describe you as kind and honest and trustworthy. At least one mentions that the writer has never seen you violent, nor seen you not remain in control even under trying circumstances.
56You have continued to work since these allegations were first made and since having to leave your farm. You have remained a main source of support for your mother, and I accept that if you are imprisoned there will be considerable impact on her, including relating to the financial situation because there were drawings on her mortgage for your legal fees, the repayments for which you have been making. However, as was conceded by your counsel, that is not sufficient to establish exceptional circumstances of hardship to warrant a different sentence being imposed than what is otherwise required.
57With your history you have shown some fortitude to keep working in the face of difficult challenges, notwithstanding a disposition to depression. That reflects well on your prospects of re-establishing a life for yourself after the conclusion of these proceedings and your sentence.
58I have been urged to impose a non-custodial sentence on you, whether through a Community Corrections Order or even a wholly suspended sentence. The prosecution submitted a suspended sentence would be open given the age of these offences and the power to impose suspended sentences for such offending having not been abolished until a date which falls within the alleged period of offending. It is conceded that the prosecution cannot prove beyond reasonable doubt that this offending occurred after that date, so it is conceded that technically a suspended sentence would be available.
59I also obtained a pre-sentence report which has assessed you as suitable for a Community Corrections Order and made recommendations as to conditions. It assesses you as being of a medium risk of re-offending using the tool utilised by Community Corrections Services.
60I obtained that report notwithstanding that my impression of the circumstances of your offending, and general circumstances, was that nothing short of a term of imprisonment of considerably longer than two years, was required to satisfy sentencing requirements, meaning it could not be combined with a CCO. I still consider that a wholly non-custodial sentence could not sufficiently achieve the need to convey the community's denunciation of sexual offending against children, to sufficiently punish offending of this nature, nor of conveying the message of deterrence, both to you and others.
61However, in light of all of the circumstances, including that I allow some moderation of the application of general deterrence in your circumstances as already explained, and as I consider that for a person in your position a moderate period of imprisonment would achieve the sentencing purposes I have outlined if followed by suitable supervision and rehabilitative programs, I have reached the conclusion that a sufficient term of imprisonment could be imposed and followed by a Community Corrections Order of sufficient duration, and with appropriate conditions, such that sentencing requirements could be achieved.
62I do that in light of my assessment that the offences, although serious for all of the reasons that I have already explained, are not to be categorised at even as high as moderate on the scale of possible offences of this nature in all of the circumstances that occurred. In particular they were of short duration, they were not accompanied by physical violence, let alone the inflicting of any injury, nor of significant humiliation, torture or the other much more reprehensible aspects that unfortunately are often seen to accompany offences in this field or falling under the very provisions that these offences are, namely of attempted rape, of rape or of indecent act with a child under 16.
63In reaching the conclusion that a term of imprisonment followed by a CCO would be sufficient, I have of course invoked the wider use of CCOs described by the Court of Appeal in Boulton's case.
64I am of the view that the sentence in combination that I will impose will involve for you a significant and presumably very salutary period in prison, followed by supervision, remedial programs and especially assessment for a suitable sex offender program after your release. I have also decided that it is necessary to impose a moderate amount of unpaid community work as further penalty, even on top of the period of imprisonment that you will serve, having regard to the nature of the offences involved. That however will not be so high an amount of unpaid community work as to prevent you from gaining and continuing in farm work on your release from prison, especially as it will be available to be completed over the extended period of the CCO.
65Would you stand up now please, Mr Cooper.
66Bryan Cooper, on each of the charges you are convicted and sentenced as follows. On Charge 6, the charge of rape, I impose imprisonment of 720 days commencing today.
67On Charges 1, 3, 5 and 8 I impose a Community Corrections Order to last for three years with conditions that you perform 100 hours of unpaid community work, be subject to supervision, that you attend for assessment and treatment as directed for mental health issues, and that you attend as directed for any programs for which you are assessed as suitable to prevent re-offending. It is noted that there is a specialist assessment that could be applied in relation to potential sex offender programs and that seems the most appropriate in the circumstances.
68In addition to those conditions all usual terms of a community corrections order apply which I understand will have been explained to you, but I will repeat them here briefly. The Community Corrections Order will start on the day of your release from prison. Within two working days of that date you are to report to the nearest community corrections office to where you will be living. I do not know that address so that cannot be nominated at this time, but as the time for your release from prison approaches that can be ascertained.
69During the whole of the Community Corrections Order you must report to Community Corrections officers any change of address of where you are living or where you are working, and you must report that within two clear working days of that change occurring.
70You must submit to visits or attend for supervision visits as directed by Community Corrections officers. You must obey all lawful directions of Community Corrections officers. You must not leave the State of Victoria without prior permission of Community Corrections officers, and above all you must commit no further offences during the period of the Community Corrections Order, which as I say, starts on the date of your release from prison and lasts for a further three years.
71I must explain to you that if you contravene the Community Corrections Order, that means breach it, either by not complying with the conditions or by breaching the terms, including by further offending, you can expect that contravention proceedings would be brought before the court and most likely before me. If brought before the court for contravention of a CCO the powers of the court include just to confirm the CCO, or to vary its terms, including by increasing its duration or conditions, or by cancelling the order and re-sentencing you on the offences for which the order was imposed. Which of those courses would be taken would depend upon how much of the Order you had satisfactorily completed at the time, the circumstances of the breach or contravention, and your general circumstances at the time, but I am obliged to explain to you that this is the consequence were you to breach the Community Corrections Order. A contravention is also an offence in itself and could attract a separate punishment.
72Mr Cooper, do you understand the terms and conditions of that Community Corrections Order?
73OFFENDER: Yes.
74HER HONOUR: Do you agree to comply with it?
75OFFENDER: Yes.
76HER HONOUR: I think that the s.6F declaration does not need to be made because there is only one term of imprisonment imposed.
77MR TRIANDOS: Correct, Your Honour.
78HER HONOUR: So is that right? I do not state that part.
79MR TRIANDOS: Yes, Your Honour.
80HER HONOUR: I was asked to make a forensic sample order which I do, having regard to the circumstances of the offending and it was consented to. I confine that to a sample taken by way of what is called a scraping from the mouth, but, Mr Cooper, they rub a swab on the inside of your cheek or ask you to do it for yourself. It is not intrusive and does not hurt unless you resist the taking of that sample. This is in order to have your DNA tested and the results placed on the country's database. I am obliged to warn you that if you resist the taking of that sample an authorised officer can use reasonable force to take it, but as I have said, unless you resist it should not be intrusive and should not hurt.
81I will be signing that. There remains only the issue of the Sex Offender Registration Act and its application. Can you clarify that attempted rape falls within - what category is that?
82MR TRIANDOS: Class 1, Your Honour.
83HER HONOUR: Class 1, all right. In that case all of the offences fall to be counted there.
84MR TRIANDOS: Yes, Your Honour.
85HER HONOUR: Mr Cooper, the Sex Offender Registration Act applies in your circumstances and has the result that your name will be on the Sex Offender Register for life, having regard to the classes of offences, I mean by that that were committed.
86My Associate will bring you, once it has been signed by me and checked by counsel, a copy of a notice that sets out what that is all about and what your obligations will be of reporting to police. None of that comes into operation until you are released from prison, and no doubt you will be reminded of that closer to the time for your release from prison, but it is set out in a notice that will be given to you and you will be asked to sign an acknowledgement that you have received a copy of that notice.
87You can take a seat now while documentation is prepared.
88MS RANDAZZO: Your Honour, may I approach the dock while that is done?
89HER HONOUR: Yes. The remainder of what needs to be done is the signing of forms. I do not think there is any necessity for the video link to be maintained during that. I have announced all my reasons for sentence and the sentence itself. I will therefore ask for the video link to be discontinued.
90The notice will be shown to counsel to check and then my Associate will approach you and ask for the acknowledgement to be signed. I think we will have the Sex Offender Registration document signed first while I am still dealing with this.
91I will have counsel check the CCO and if it is satisfactory it should be signed.
92Mr Cooper, your counsel has - you can approach too, Ms Randazzo, if you would like, yes. I will now sign the CCO and copies will be made and provided to each side. I have also signed the forensic sample order. Given the time of day do you want a few words with your client if he remains in court?
93MS RANDAZZO: Yes, I was going to try and ‑ ‑ ‑
94HER HONOUR: I do not know the timing of getting downstairs in time, that is all.
95MS RANDAZZO: Yes, I do not think I will get a chance to.
96HER HONOUR: What I will do is ask that he be allowed to remain for a few minutes for you to talk to him here.
97MS RANDAZZO: Thank you, Your Honour.
98HER HONOUR: But there is not to be contact, physical contact, with the other people in the court.
99MS RANDAZZO: No, the other people - they will just say goodbye to him essentially but no physical contact.
100HER HONOUR: Yes, I will ask that he be allowed to stay here for a few minutes because otherwise there might be missing out in time downstairs. You want to raise something? And I have got something else to raise too.
101MR TRIANDOS: Yes, Your Honour.
102HER HONOUR: I will just raise what - I had wondered, but I will not do it without you agreeing, Ms Randazzo, or your client, about putting a custody note on the documentation. Whether the report of Dr Walton is to be revealed is in your client's hands and I do not send it as well unless - it ultimately goes to prison authorities.
103MS RANDAZZO: It does ultimately go to prison authorities, yes.
104HER HONOUR: But I do not know if you want a custody note as to the recommendations for immediate assessment for medication.
105MS RANDAZZO: Yes, in terms of medication my concern would be - I thought Your Honour was referring to something else, a custody note in relation to possibly his mental health state and that will be assessed in any event.
106HER HONOUR: What I am talking about is that a custody note that it is recommended there be an immediate assessment.
107MS RANDAZZO: An immediate assessment and medication.
108HER HONOUR: Of mental health for medication prescription.
109MS RANDAZZO: Yes, that in those terms, yes, I would have asked for that, thank you.
110HER HONOUR: Yes. You wanted to raise something else?
111MR TRIANDOS: Can I ask Your Honour to order a transcript of the plea and sentence? I raised the issue of the transcript on the last occasion.
112HER HONOUR: The sentence will be transcribed.
113MR TRIANDOS: Yes, I understand that, Your Honour.
114HER HONOUR: I will be on leave and unable to revise it as a matter of urgency. When I say urgency I will be away from - it is not going to come through by the end of tomorrow and I will not then be available for a month. It could be emailed to me but my ability to get it revised from afar, given my relatively restricted computer skills, is problematic.
115MR TRIANDOS: I understand.
116HER HONOUR: I can try but it might be hard. Transcript of the plea hearing? It is unusual. I have to request it through the Chief Judge's Office.
117MR TRIANDOS: Yes, I understand that, Your Honour.
118HER HONOUR: You want it?
119MR TRIANDOS: I am instructed to make that request, Your Honour. Even the unrevised transcript of the sentence would suffice, Your Honour, for the time being.
120HER HONOUR: The unrevised transcript ‑ ‑ ‑
121MS RANDAZZO: Which would not be published of course, Your Honour.
122HER HONOUR: It would not be published. I understand. The parties need to see what I have considered and there are time limits that run. I do understand that. Let me just think through. It may - sometimes it takes a week to come. I cannot guarantee when it will come. I can almost guarantee it will not be here before I leave. The last chance for me to obtain it would be tomorrow afternoon. My Associate will be back towards the end of next week and able to monitor when it comes through and yes, I am prepared to say that I will authorise her to release only to the two parties - or to the lawyers for the two parties what is an unrevised version of the transcript of the sentencing reasons.
123MR TRIANDOS: Yes, Your Honour.
124MS RANDAZZO: Thank you, Your Honour.
125HER HONOUR: I will then leave the bench and allow you to approach and talk to your client. I will stay just behind here so I can sign an order quite quickly so he can then be removed from the building once you are finished speaking with him.
126MS RANDAZZO: I will not take long.
127HER HONOUR: Mr Cooper, the upshot is it is just fractionally under two years' imprisonment followed by a three year CCO. Thank you.
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