Director of Public Prosecutions v Cotchin

[2016] VCC 951

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

AT WODONGA
CRIMINAL JURISDICTION

CR-15-01456

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLYDE COTCHIN

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Wodonga
DATE OF HEARING:	5 July 2016
DATE OF SENTENCE:	5 July 2016
CASE MAY BE CITED AS:	DPP v Cotchin
MEDIUM NEUTRAL CITATION:	[2016] VCC 951

REASONS FOR SENTENCE
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Subject:One charge of committing an indecent act with a child under the age of 16 years

Catchwords:
Legislation Cited:
Cases Cited:

Sentence:TES 6 months’ imprisonment wholly suspended for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. A.J. Moore	Office of Public Prosecutions
For the Accused	Ms. D. Price	Ms Sally Wilson

Pages 1 - 9

 

 

HER HONOUR:

1Clyde Richard Cotchin, you have pleaded guilty to one charge of committing an indecent act with a child under the age of 16.  The maximum penalty for this offence is 10 years imprisonment. 

2You were initially charged with three charges of committing an indecent act with a child under the age of 16 and four charges of sexual penetration of a child under the age of 16.  All seven charges related to the one complainant, whose name I will not mention in order to safeguard her privacy. 

3The seven charges were in the process of being tried before a jury.  On Day 3 of the trial, a resolution was reached between yourself and the prosecution.  A new indictment with the one charge to which you have pleaded guilty was filed over the trial indictment.

4Your offending conduct is outlined in the “Revised summary of prosecution opening for plea”, Exhibit A.  Your offending occurred in the early hours of 19 August 1995.  Your victim, who was then aged 13 years, had been babysitting your two daughters overnight.  You were aged 34 years at the time and came home drunk and woke up your victim who was sleeping on the couch in the lounge room. You went into your bedroom and called your victim in, patted the bed and told her to get in.  You then leant over towards your victim and put your hand under her pyjamas and pulled her towards you and squeezed her breast.  Your victim was very scared. 

5Soon thereafter, when you were asleep, she hurriedly left your home to run home and you pursued her and ran naked out into the street yelling at her to stop and come back.  She continued to run home as fast as she could. Meanwhile, you rang her mother claiming that you had given your victim a hug which must have frightened her and apologised, claiming that it was an accident.  Your victim was crying and upset, but she did not tell what had happened to her mother, with whom she had a poor relationship.

6Soon afterwards, in late August 1995, your victim made mention of the incident to a friend at school who told a teacher, who, in turn, notified the school welfare officer, who, in turn, notified a police officer.  The police officer attended her home where the victim gave some details of the incident, however, she later signed a statement requesting that police not investigate the matter further as she felt unable to deal with the stress of the investigation and felt unsupported by her mother. 

7Many years later, in mid-2014, your victim contacted police and made a statement about what happened on 19 August 1995.  You were ultimately interviewed on 10 February 2015.  You told police you were asleep and had rolled over and "squeezed her boob", but it was accidental. 

8The law provides special protection to children because it is acknowledged that they have an unequal relationship with adults who are much older than themselves, and against whom they are unable to defend themselves, particularly in matters sexual, which are confusing and embarrassing for them.

9In this case, you told your innocent young victim to get into your bed and, as she told the jury, "I just did what I was told."  Your behaviour in telling her to get into your bed when you were over two decades older than her, shows appallingly inappropriate behaviour. As a minor, sleeping under your roof for the night, she was entitled to your protection and you abused her trust in a way that clearly frightened her and confused her.  She was already in a vulnerable position, living in what would appear to be a disrupted family environment, with a single mother who had four children from two different fathers, and who, on the deposition material, seemed to have been less than diligent in the care of the victim. 

10Unhappily, it seems that it is often children who are already vulnerable, who are subjected to the indignity of sexual abuse, adding a layer of grief and shame to further erode their already fragile self-confidence. In a Victim Impact Statement, Exhibit B, your victim spells out this factor in a very powerful way.  I am cognisant of the fact that your victim speaks of the impact of the entirety of the offending that she alleged against you, six charges of which were not proceeded with by the prosecution, whereas I am to sentence you one charge only. Nevertheless, in a poignant way, your victim articulates the long term harm which the law recognises can be caused by sexual offending against children:  the loss of innocence, the difficulty trusting adults, the detrimental effects on family and intimate relationships, the cruel and irrational belief that the victim, herself, was to blame, and the mental ill-health that can flow from those factors. 

11It is to the enormous credit of your victim that, in spite of her fractured upbringing and your offending, she has gone on to make a success of her life with a worthy career and a loving family of her own.  It is also to her credit that she states that she forgives you and, I am told by the prosecutor, that she is not vengeful and does not wish to see you serve an immediate custodial sentence.

12As I have said, I am to sentence you only for the one act of indecent act with a child under the age of 16 to which you have pleaded guilty.  On the scale of indecent acts, it has a number of aggravating factors, namely, that you lured your victim to your bed, that you chased her when she fled from your bed and home and that, in damage control mode, you rang her mother and lied that the indecent touching had been accidental.  That lie could only serve to increase your victim's sense of powerlessness. The very fact that the indecent act occurred under your roof when she was a minor entitled to your protection is, of course, also an aggravating factor. 

13You maintained your lie that the touching had been accidental right up until the resolution of your trial.  Your plea of guilty is a very late one, but I take into account that you were initially charged with the six other offences, four of which were acts of sexual penetration, and all six of these other offences were not proceeded with by the prosecution. In my assessment, yours is a utilitarian plea, not accompanied by remorse, but you are still entitled to a discount on the sentence which you would have received had you pleaded not guilty. 

14In a plea on your behalf by Ms Price, the court was told that you are now aged 55 years, having been born on 4 February 1961.  After leaving school following the completion of Year 11, your principal career has been some 20 years as a member of the Australian Army, in which you rose to the rank of Sergeant.  You engaged in three tours of duty in Timor and have received two service medals and three medals for each of the tours of duty. 

15A bundle of certificates was tendered as Exhibit 1.  These are evidence of a successful career in the Army and include certificates for a variety of courses undertaken by you, particularly in mechanical and electronic engineering maintenance skills and, also, a certificate of appreciation of service upon your being medically discharged in 2006 after 20 years of service.

16Since leaving the Army you have been gainfully employed by using your skills to work mainly as a service technician for a company called Energy Power Systems, by whom you have been employed for 6 years.  This involves servicing air conditioning and other equipment and involves being on call.  You work in Darwin, where you have lived since 1996.  Ms Price stated that you have been in a stable de facto relationship in Darwin since 1999 with Ms Kim Lawler and treat her son, Storm Lawler, aged 24, as your own son. 

17Tendered as Exhibit 2, are references from your partner and her son who speak of you as being a loving and caring person, who has provided them reliably with emotional, financial and practical support, as well as always having been prepared to help others.  In this regard, Ms Price told the court that you have been a volunteer for a rural fire service for six years.  Although you have ceased this work because of the demands of being on call in your job, you have since become involved in community fund-raising for people with disabilities.

18In sentencing you for this offence, I take into account your plea of guilty and that no prior offending is alleged against you and your counsel has told the court that there has been no subsequent offending.  I also take into account the delay which has occurred in bringing these matters before the court and to a conclusion, which is not in any way attributable to you.  This is a significant mitigatory factor, particularly as you appear to have led a blameless and worthy life in the meantime. 

19I have carefully weighed up the competing sentence principles.  In my view, the circumstances of the offending, with the aggravating features that I have mentioned, are such that emphasis must be placed upon denunciation of your conduct and general deterrence. 

20Notwithstanding the matters in mitigation, I have concluded that the objective gravity of the offending means that the only appropriate sentence is one of imprisonment, however the mitigatory factors are such that I consider that it is desirable to suspend the whole of such a sentence of imprisonment, a sentencing option which was still available at the time of the commission of the offence.  

21In reaching such conclusion, I have had regard to the nature of the offence, the impact on your victim insofar as I am able to divorce it from any impact claimed to result from other allegations which were not proceeded with by the prosecution, and the need to ensure that the sentence adequately manifests the denunciation of the court of your conduct and adequately deters others from committing like offences and reflects the gravity of the offending.

22Would you stand up please. 

23On Charge 1, of committing an indecent act with a child under the age of 16 years, you are convicted and sentenced to be imprisoned for a period of six months.  I direct that the whole of such sentence be suspended for a period of two years. 

24Mr Cotchin, you need to be aware that the sentence I have imposed is a term of imprisonment, albeit that you are being given the opportunity to serve it whilst remaining in the community.  If, during the period of the order, namely the next two years, you commit another offence punishable by imprisonment, whether in or outside Victoria, you will have breached the sentence.  In that event, you will be bought before me on such breach and it is highly likely that you will be ordered to serve the actual term of imprisonment.  Do you understand the nature of the order that I have made?

25OFFENDER:  Yes, Your Honour.

26HER HONOUR:  Do you understand the consequences of the order particularly if you breach it.

27OFFENDER:  Yes, Your Honour.

28I cause to be noted in the court record, and inform you Mr Cotchin, that, as you have been convicted of a Class 2 registrable offence pursuant to s.7 of the Sex Offender's Registration Act 2004, you are a registrable offender pursuant to s. 6 of the Act, and you must comply with the reporting obligations of that Act for a period of 8 years pursuant to s.34 of the Act.  My Associate will hand to you a notice, Mr Cotchin, which sets out your reporting obligations under that Act and the consequences that may occur if you fail to comply with the obligations. Would you please acknowledge receipt of that notice by signing the document given to you by my Associate.  Thank you.    

29MS PRICE:  If I could step back and just assist in that process.

30HER HONOUR:  Of course.  Just while that is being done, I have just realised that I have given a s.6AAA declaration referrable to the plea only, but in fact in arriving at that, I had taken into account, in particular, the substantial mitigatory factor of delay, so in that event I do not make that declaration.  I am not actually obliged to, in the circumstances.

31MR  MOORE:  No, Your Honour.

32HER HONOUR:  I have just made an error in the way that I have expressed it, so I retract that s.6AAA statement.

33MR MOORE:   I understand that, Your Honour.  While I'm on my feet I'll hand up the forms of the 464 order.

34HER HONOUR: Thank you very much. Mr Cotchin, pursuant to s.464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30(A) of Part III of the Crimes Act [1958] until a sufficient sample is obtained for placement on the data base, and I order that for the purposes of undergoing such procedure, you report to the officer in charge of the Wodonga Police Station in Hovell Street during the four weeks from today, which is the commencement of the day of the sentence. I consider that such order is justified by reason of the seriousness of the circumstances of the offending and the fact that the order was by consent.  Is that so?

35MS PRICE:  It was.

36HER HONOUR:  Yes.  Thank you.  There will just need to be another copy.  Have a seat for the moment, Mr Cotchin.

37Mr Cotchin, I am not sure if I made it clear to you that, if you do not consent to the taking of a scraping from the mouth, it is a saliva sample to be taken by a cotton bud swab, then the police are entitled to use reasonable force to ensure that that sample is obtained. 

38MS PRICE:  If I could accompany your Associate to the dock.

39HER HONOUR:  Yes.  Yes, thank you.

40MS PRICE:  He has signed that acknowledgment.

41HER HONOUR:  Thank you Ms Price.  Thank you Madam Associate, would you be good enough to hand a copy of the 464ZF order to each of the parties.  Thank you.  We will adjourn till 10.40 tomorrow morning. 

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