Director of Public Prosecutions v Cottee (a pseudonym)
[2024] VCC 230
•4 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX COTTEE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 February 2024 |
DATE OF SENTENCE: | 4 March 2024 |
CASE MAY BE CITED AS: | DPP v Cottee (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 230 |
REASONS FOR SENTENCE
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Subject:Trial - sentencing
Catchwords: Rape
Legislation Cited:
Cases Cited:
Sentence:14 years' imprisonment, 8 years and 6 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin (plea) Mr A. Cecil (sentence) | Office of Public Prosecutions |
For the Accused | Mr R. Bhattacharya | Stary Norton Halphen |
HIS HONOUR:
1Alex Cottee[1], you have been found guilty by a jury of 10 charges of rape, each of which carries a maximum term of imprisonment of 25 years.
[1] A pseudonym.
2You have admitted prior convictions, although I note that you have no prior convictions for any sexual offence. Your convictions go back to 2011 when you appeared at the Geelong County Court on charges of attempted armed robbery and armed robbery for which you received a youth attendance order for nine months. Since then there have been various offences of dishonesty and some offences involving violence.
3The last prior conviction was for burglary and criminal damage with intent to damage and destroy, for which you were convicted at the Geelong Magistrates' Court on 19 February 2019 and received a community correction order for a period of 12 months. That order would have been in force during the period when the offending the subject of this indictment commenced.
4The prosecution provided a summary of prosecution opening for the trial dated
21 September 2022.5At the time of offending, you were aged between 26 and 27 years and your victim was aged between 19 and 22 years. You commenced the relationship with your victim in about December 2018. In the early part of 2019, you moved in together. Your victim describes how when you first met in person at her house, she spoke to you on the phone after you had left and you were asking her who was at the house. She told you that she was alone. You turned up five minutes later and you banged on the front door. You were angry and you insisted on inspecting the house to check whether anybody else was there. When you looked around the house and found that there was no-one there, you left.
6The first offending occurred in about April-May of 2019 after you had moved in together. Your victim was by that time pregnant with your child. She was on the couch in the loungeroom watching TV, you came in and started to pull off her pants. You positioned yourself on the edge of the couch so that she was on her hands and knees in the doggy-style position. She thought you were going to have regular sex but you inserted your finger into her anus. She screamed at you 'No, no, no' but you did not stop penetrating her for another 30 seconds. That is Charge 1.
7Then you inserted your penis into her anus, caused her to scream at you in pain, again saying 'no'. She was kicking out, trying to kick you in the face. You continued to penetrate her until you ejaculated in her anus and then walked away to have a shower.
8Charges 3 and 4 occurred one after the other in about February 2020 after your victim had given birth to your child. She had had an episiotomy during the birth and spent two nights in the hospital before being discharged. About two to three weeks after her discharge, she was lying in bed almost asleep with her eyes closed. The next thing she recalls is feeling your fingers inside her vagina. You had removed her underwear or pushed her underwear to the side and inserted your fingers into her vagina. She continued to pretend to be asleep so that you would leave her, but you did not. You then got on top of her and she did not move or indicate that she was awake. You inserted your penis into her vagina for around a minute, ejaculated inside her, then got off and lay down next to her.
9There was evidence led as context and relationship evidence to the effect that you had committed other offences that would constitute rape. That is said to have occurred as part of that relationship context evidence on a number of occasions during the period of your relationship. I make it clear that you are not to be sentenced for that conduct. You are only to be sentenced for the offences of which you have been found guilty. However, the context cannot be ignored because it goes to the nature of the relationship that you had during the period when the offences are said to be committed.
10Charges 5 and 6 occurred between February and April 2020. Charge 5 occurred when your victim was lying on her back with you on top of her between her legs. She said to you 'No, I don't want to have sex'. She repeated that a number of times and pushed you off, but you were still on top of her. She was unable to hold you off. You moved her underwear to the side, inserted your penis into her vagina. She repeatedly told you to stop, that you were hurting her and she did not want to have sex. You continued to penetrate her until you ejaculated inside her vagina.
11Charge 6 involved your victim being asleep in bed. She was lying on her back and she awoke to her body moving and she could feel something inside her vagina. She started yelling, asking you what you were doing. You were lying on top of her and had your penis in her vagina. When she asked you what you were doing, your response was to tell her to shut up. You continued to penetrate her until you ejaculated inside her vagina.
12The offending the subject of Charge 8 occurred on 7 December 2020. Your victim was in bed watching videos on her phone. You came to the bed. You had apparently been drinking. You kissed her and initially she kissed you back. She told you that she did not want to have sex with you. You persisted, lying on top of her and continued to kiss her. You inserted your penis into her vagina. She told you to stop and repeated that she did not want to have sex, but you continued. Again, she screamed at you to stop because you were hurting her. You had hold of her shoulders and you ejaculated inside her vagina, then got off. She noticed that she had blood in and around her vagina.
13Charges 9 and 10 occurred in April-May of 2021 towards the very end of the period when you and your victim were living together. The incident occurred shortly before 3 June 2021, which was the date on which the relationship ended. Your victim had gone to bed. You came into the room after you had been drinking. You got into bed naked and started touching your victim. You rubbed her bottom and tried to remove her underwear. She said 'No, I don't want sex'. You continued touching her bottom underneath her underwear, then inserted your finger into her vagina. She said 'Stop' but you did not listen. She was lying on her side with her back to you when that happened. That is Charge 9.
14You then stopped penetrating her with your finger and moved her underwear to the side. You inserted your penis into her vagina. She was still telling you to stop but you continued for around a minute before ejaculating inside her vagina.
15The events the subject of Charge 11 occurred in around about that same timeframe, April-May of 2021, when your victim was watching television. She and you were seated on the couch and you forced her to have oral sex by inserting your penis into her mouth and forcing her to continue in that position until you ejaculated.
16The prosecution tendered a victim impact statement which is Exhibit B. Your victim described in the first two paragraphs your relationship as follows:
'From day one of our relationship, [Alex] worked his way into my life, manipulating me into being scared of the world and everyone around me. He made out that I could only trust him and everyone else was bad and was going to hurt me. He would tell me stories about terrible things that have happened to people and made me believe it could happen to me if it wasn't for him being there.
‘[Alex] played with my mind, trying to convince me that no-one would believe he had raped me because we were in a relationship. One of the rapes was so violent I had internal injuries and called my doctor. Every rape was extremely painful and violent, and I would always be in agony during each rape and at least for a couple of days afterwards. I was afraid of reporting the rapes to police as I knew the safety of myself and my children would immediately be impacted'.
17I am satisfied beyond reasonable doubt that that accurately describes the nature of your relationship with your victim during the period of the offending.
18Your counsel tendered a number of documents. The first is an outline of submissions on plea dated 19 February 2024 as Exhibit 1. Also tendered were a number of certificates of achievement showing that during your period in custody you have taken the opportunity of completing rehabilitative courses or classes. That is Exhibit 2. There is a letter from Atlas Remand Program dated 1 November 2023 which speaks to the fact that you have completed nine modules of the Atlas Program designed to assist you in dealing with the prison environment and to progress rehabilitation. That is Exhibit 3.
19Exhibit 4 is your legal health record from Corrections which speaks of various reports you made to the prison about being assaulted within or around your cell and the harassment that you were receiving from neighbours when you were in the Ravenhall Correctional Centre. It speaks of you being provided with a single cell and various allegations or reports of mental impairment and requests for increased dosage of medication. That is Exhibit 4.
20Exhibit 5 is a report from Patrick Newton psychologist dated 13 February 2024. That was relied upon significantly by your counsel in the plea hearing. I note that the report indicates that Mr Newton had received a number of documents in preparation for his consultation with you which took place on 18 January 2024 over a period of some 90 minutes via a video conference with you whilst you were in custody. In addition to documents such as a summary of the prosecution opening and your criminal history, I note that Mr Newton was provided with your Justice Health file from 1 October 2021 to 27 April 2023, a report from Dr Harriet Downing, clinical neuropsychologist, dated 4 April 2023, a report of Dr Gunvant Patel, psychiatrist, of the Victorian Institute of Forensic Mental Health, dated 9 December 2015, and a report from Ms Carla Lechner, psychologist, dated 13 August 2015.
21I have not been provided with any of those, but Mr Newton makes some references to that material in the course of his report. In paragraph 14 of his report, he notes, based on his consultation with you, that your education was unstable, reflecting chaos in your early years. You told Mr Newton that you attended 11 schools in total, moving schools every year, more frequently because of your family's peripatetic lifestyle, and you reported severe difficulties with the acquisition of even rudimentary literature or numeracy skills. You told Mr Newton that you 'can't spell' and that you still have difficulties with arithmetic.
22More generally, you have described to Mr Newton that you had been a poor student, commenting to him that you ‘didn't do so well with learning'. However, Mr Newton says by way of a footnote that, in contrast, in 2015 you had told Dr Patel that 'you could be pretty good at studying in the classroom' and that you ‘were literate and numerate at the time you left school'. Similarly, when speaking with Ms Lechner, psychologist, you described yourself as 'an average' student with no social or behavioural problems. Mr Newton also pointed out that your 2023 assessment by Dr Downing, clinical neuropsychologist, was invalid due to poor effort on your part.
23Generally, Mr Newton describes you as an unreliable historian. You described to Mr Newton a severely deprived and abusive childhood during which you allege that you had been molested between the ages of 9 and 13 by your grandfather. Mr Newton notes by way of another footnote that, in contrast, when discussing his personal history with Dr Patel in 2015, it is recorded that:
'Mr [Cottee] was not aware of any childhood history of sexual abuse but stated that his mother has told him that she thought his paternal grandfather may have interfered with him when he was young'.
24I find it difficult to make an accurate assessment as to the extent to which Bugmy principles may apply as your counsel has sought to urge upon me. There are other aspects of Mr Newton's report which reflect on your reliability as an historian. A previous diagnosis of malingering, for example, and obviously a deliberate attempt to convince others that you were psychotic when the symptoms did not support that. However, I note that it was put at the plea hearing that you had, and I think you said something similar to Mr Newton, difficulty in coming to terms with the sexual abuse, and talking about it, until recent times.
25It is difficult for me to reach factual conclusions upon which I could make a clear finding that the Bugmy principles were applicable in this case. However, I think that the sentencing exercise has to be a little more nuanced than that. I think a judge must look at the entire picture and endeavour to reach conclusions upon which the sentencing exercise can be conducted, sometimes on unsatisfactory information but nevertheless looking at the whole picture created by the facts including the facts relating to the offending and your criminal record.
26You are, and have been since you were 18, receiving a disability pension through the NDIS scheme based upon diagnosis, it seems, of borderline personality disorder. Mr Newton did not make that diagnosis himself, but he did speak of antisocial personality disorders and dysregulation attendant upon those conditions. It seems to me that your behaviour generally is consistent with somebody who is dysregulated, unreliable and the subject of a personality profile consistent with that described by Mr Newton.
27To the extent to which I could point to facts upon which I could find on the balance of probabilities that there was sufficient deprivation and abuse in your childhood to warrant the clear application of the Bugmy principles, I find it difficult to reach that level of satisfaction. However, at the end of the day, it seems to me that there is always a difficulty when somebody proves to be an unreliable historian and one has to look to other pointers to make a fair determination. Whether the Bugmy principles apply or not, I am satisfied that you have had a difficult upbringing, and that you have been subjected to deprivations and physical abuse of one kind or another such as are likely to lead to a dysregulated later life and symptoms of personality disorders.
28All in all, I think this calls for some reduction in your moral culpability. It was also urged upon me that the mental disorders, the adjustment disorder with anxiety and other features of your personality profile should be taken into account in applying Verdins' principles 5 and 6. I am not sure how clear the evidence is, but it seems to me that there was no or no great dispute about the application of those principles in reduction of sentence in that your incarceration is likely to have a continuing adverse effect on your mental health and it will make your time in custody harder.
29All of those factors have to be balanced against the assessment by
Mr Newton that you represent a moderate high or above average risk of sexual recidivism. That is an important consideration, given that the sentencing regime under which I am required to operate must give priority to protection of the community. It seems to me that the mental impairments that have been part of your profile for some time, and which have given rise to serious illicit drug and alcohol abuse, have contributed to your offending and feed into the assessment of the moderate high and above average risk of further sexual offending. I have to take those matters into account in assessing an appropriate sentence.30You are now 30 years of age. You are the eldest of your parents’ four children. You have two sisters and a brother. Your father and mother separated when you were aged about 11. You moved thereafter between them. I have already referred to the fact that your counsel relied upon the sexual abuse and physical abuse that you received at the hands of your grandfather and the physical abuse arising from your father. Your father has now passed away. You maintain a good relationship with your mother and some of your siblings.
31You have done very little in the way of work, although you had a regular job at an abattoir during the period when you were living with your victim. I have to take into account the maximum penalty for each of the offences of rape. I need to take into account the standard sentence for offences of rape which is 10 years. On imposing a custodial sentence on Charges 3, 4, 5, 6, 8, 9, 10 and 11, I am required to sentence you as a serious sex offender.
32I note that under the provisions of the Sentencing Act, on your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual offence charges, I am required on the sexual offence charges thereafter, to regard the protection of the community as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purposes of protecting the community, I am empowered to impose a sentence greater than is proportionate to the gravity of the offence. This means that the sentencing task in respect of Charges 3, 4, 5, 6, 8, 9, 10 and 11 on the indictment is to be undertaken on the basis that protection of the community from you is the principal purpose for which the sentences are imposed and to achieve that purpose, sentences may be imposed longer than that which is proportionate to the gravity of the offences considered in the light of the objective circumstances. However, because of the circumstances and the particular mitigating factors in your case, I do not propose to do so. I note that the prosecution has not urged me to do so.
33The Sentencing Act also requires that unless I otherwise direct, with respect to Charges 3, 4, 5, 6, 8, 9, 10 and 11, the sentences I impose are to be served cumulatively. Allowing for matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I will be ordering. Again I note that the Crown did not call for a disproportionate sentence or for cumulation of those sentences.
34Doing the best I can to balance these features of the sentencing regime and the facts and matters put forward in mitigation of sentence, I proceed to sentence as follows.
35On Charge 1 of rape, you are convicted and sentenced to imprisonment for eight years.
36On Charge 2 of rape, you are convicted and sentenced to imprisonment for eight years.
37Dealing with the relationship between those sentences and the standard sentence, the seriousness of those first two offences, occurring as they did on the same occasion, falls short of that which would persuade me to impose the standard sentence of 10 years.
38On Charge 3 of rape, you are convicted and sentenced to imprisonment for
10 years.39On Charge 4 of rape, you are convicted and sentenced to imprisonment for
10 years.40On Charge 5 of rape, you are convicted and sentenced to imprisonment for
10 years.41On Charge 6 of rape, you are convicted and sentenced to imprisonment for
10 years.42On Charge 8, you are convicted and sentenced to imprisonment for 10 years.
43On Charge 9 of rape, you are convicted and sentenced to imprisonment for
10 years.44On Charge 10 of rape, you are convicted and sentenced to imprisonment for
10 years.45On Charge 11 of rape, you are convicted and sentenced to imprisonment for
10 years.46I regard the offending in those charges, based on the seriousness of the offending, as reflective of the standard sentence of 10 years.
47So far as the cumulation of sentence is concerned, I treat the sentence of 10 years on Charge 3 as the base sentence and I order that one year of the sentence on Charge 6, one year of the sentence on Charge 8, one year of the sentence on Charge 10 and one year of the sentence on Charge 11 be served cumulatively upon one another and upon the base sentence of 10 years, making a total effective sentence of imprisonment for 14 years.
48I fix a period 8 years and 6 months to be served before you become eligible for parole.
49I declare 810 days as time to be reckoned as served on the sentence that I have imposed and to be deducted administratively from that sentence.
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