Director of Public Prosecutions v Cox
[2014] VCC 209
•27 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00909
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM COX |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2013 | |
DATE OF SENTENCE: | 27 February 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014] VCC 209 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | OPP |
| For the Accused | Ms B. Franjic | Balmer & Associates |
HER HONOUR:
1 William Cox, you have pleaded guilty to three charges of sexual penetration of a child. This is a serious offence for which the highest penalty is 25 years in prison. You have also pleaded guilty to one charge of doing a indecent act with a child. This is also a serious offence and has a penalty of up to 10 years in prison.
2 When we were here last, the prosecutor read out details of your crime[1]. I will use that as the basis for the penalty I will be giving you today.
[1]Exhibit A
3 When I talk about your crimes today, I will not say your stepbrother’s name. I will call him B. I will not refer to anyone else’s name except yours. I do this to make sure his identity is not made public, which is something the law requires.
4 A few years ago, when B was still little, and you were a teenager, you did some bad things to B. I must say out loud what you did. Twice, you rubbed your penis on his.[2] Once, you put your penis in his bottom.[3] Twice, you put your penis in his mouth.[4] Once, you put his penis in your mouth.[5]
[2]Charge 1
[3]Charge 2
[4]Charge 3
[5]Charge 4
5 I have thought very carefully about your case, and I have decided that I will not send you to prison.
6 I am going to say some things to the lawyers now, then I will come back to you and explain what your penalty is going to be.
7 First, I note that charges 1 and 3 are representative of more than one occasion of that type of offending.
8 Next, Mr Cox was aged between 14 and 17 years at the time of the offending, and B was aged between 3 and 7 years. B and his two older brothers and mother came to live with Mr Cox and his father when his father was in a relationship with B’s mother. Apparently the parents were made aware of the offending or some aspect of it around the time it occurred, but Mr Cox denied it, and nothing was done. The offending came to light again after the relationship broke down and B and his mother and brothers had left the family home. She returned two days later to tell Mr Cox’s extended family about the offending, and Mr Cox’s grandmother took him to the Dandenong Police Station that day to report the matter.
9 I received Victim Impact Statements[6] from B, his mother and two of his brothers, one of whom was an eye witness to one event. These crimes have clearly had an impact on all of them. B was extremely young, and was unable to tell police what had happened to him for some time. I accept that B and his mother and brothers have been emotionally affected by Mr Cox’s crimes. B may also have been physically affected as asserted in the Impact statements, but I have not been provided with medical evidence to support that assertion.
[6]Exhibit B
10 The crimes are serious, involving a very young and vulnerable complainant in his own home, at the hands of an older step-sibling, and a number of events occurred over a period of time. However, there are a number of significant features in mitigation.
11 In summary, these are that Mr Cox was himself a child at the time of the offending; that he was subject to a dysfunctional and traumatic childhood with a lack of supervision and guidance including during the period of offending[7]; that he is still a young man of 22 years at the time of sentence for whom rehabilitation is the primary sentencing consideration; that he has no criminal history, before or since; that his moral culpability is reduced because he has an intellectual disability[8]; that he is now under the full-time care and guidance of his grandmother; that he attends regularly on a mental health professional providing better pharmacological management of his Attention Deficit Hyperactivity Disorder than was the case previously including during the period of offending[9]; that he has no sexual or other disorder[10]; that he has recently been in a stable, age-appropriate intimate relationship with a young woman of similar disability; that he has permanent part time employment in a supported industry; and that, as a result of all these things, his risk of sexual re-offending is, in my view, low. In combination with his plea of guilty, and genuine remorse about, and insight into, the offending[11], these are factors which mean that a sentence of imprisonment is not the only appropriate sentence, that there are alternatives to imprisonment.
[7]Evidence from Mr Cox’s grandmother.
[8]See Exhibits 3 and 5, where his full scale IQ puts him in the extremely low range of intellectual functioning.
[9]See Exhibit 5 from his treating psychiatrist, Dr S. Joyalemi
[10]See Exhibit 4, the assessment of Dr D. Sullivan
[11]See Exhibit 2
12 As a sentence of imprisonment is not justified, the serious sex offender provisions of the Sentencing Act do not apply.
13 As a result of Mr Cox’s intellectual disability, not only is his moral culpability reduced, the need for denunciation and general deterrence is moderated to a significant degree[12]. This is even more so when regard is had to the fact that he was a child with an intellectual disability when he committed the offences. This affects the sentence that is just in all the circumstances. As he has not committed any other offences, I consider that the need for specific deterrence is also moderated by his youth and disability.
[12]R v Verdins (2007) 16 VR 268
14 Mr Cox’s background and current circumstances were outlined by his grandmother in evidence, and I received a reference from an older sister of Mr Cox[13], assisting my assessment of his low risk of sexual re-offending. As I did on the day of the plea, I acknowledge his grandmother’s outstanding commitment to him, which on the one hand involved bringing his crimes to the attention of police as soon as she became aware of it, but on the other, also enabled him to become more stable and secure and to grow in maturity.
[13]See Exhibit 6
15 Both the prosecution and defence submitted that an appropriate disposition is to place Mr Cox on a community corrections order with a Justice Plan attached. The statutory requirements to enable the reports to be placed before me, together with the court’s Christmas break and my circuit commitments, has resulted in the passage of three months since the plea was heard.
16 A Justice Plan has been provided to me and in a pre-sentence report Mr Cox has now been assessed as suitable for a community corrections order with a recommendation to attach the Justice Plan as a condition. The Plan recommends that Mr Cox engage in counselling to support his understanding and knowledge of appropriate sexual relationships, and Mr Cox also identified that he requires support to manage anger. Mr Cox agreed to attend Mr Michael Crewdson, the forensic psychologist who assessed him and provided a report[14], and who has agreed to work with him. The Plan also recommends that Mr Cox engage with Disability Client Services for the duration of his order. Before referral for the Justice Plan, Mr Cox had not been a client of Disability Services, but now connected with the Service, he is reported to have engaged well.
[14]Exhibit 2
17 I agree with counsel that a community corrections order with a Justice Plan condition is the appropriate disposition.
18 The pre-sentence report also recommends a condition that Mr Cox undertake the Sex Offender Program. I have decided that the circumstances of the offending do not require this, and that the counselling with Mr Crewdson or a similar service will cover the need for further education as to appropriate sexual relationships.
19 I have decided to make the community corrections order for two years, as that is the maximum period for which a Justice Plan condition may apply, and if the community corrections order were to continue beyond that, there will be no other program condition or supervision to continue after the Justice Plan condition expires. I am satisfied that in the circumstances of this case, two years is an appropriate period for the community corrections order. I do recommend however that Mr Cox continue contact with Disability Client Services even after the order is completed.
20 Application was made by the prosecutor for an intimate forensic sample to be taken from Mr Cox. Despite the seriousness of the offending, I am not satisfied in all the circumstances that it is in the interests of justice to make such an order. The application is refused.
21 Mr Cox, coming back to you. Stand up please. As I said to you at the beginning, I am not going to send you to prison today. I am going to put you on what is called a community corrections order. You will be on that order for two years. An appointment has been made for you to meet with the Corrections people tomorrow, Friday 28 February in Dandenong.
22 You must stay out of trouble over the next two years while this order is in place, and you must do what the Corrections people tell you to do. You also need to do what your Disability Case Manager, Sara, tells you to do. That will include going to see Mr Crewdson. You will have to agree to do all these things, and you need to sign a paper to show you agree.
23 I have to warn you that if you do anything wrong in the next two years, or you don’t do what the Corrections or Disability people tell you to do, you will come back to court and then you might go to prison instead. Do you understand what will happen if you get into trouble in the next two years with the police or do not do what you are told by the Corrections or Disability people?
24 ACCUSED: Yes.
25 HER HONOUR: All right. I will read out the formal orders, and while I am doing that, Mr Cox, you can come and sit behind your lawyer.
26 On all charges, Mr Cox is convicted and released on a Community Corrections Order for two years, with the core conditions, and a condition that Mr Cox is directed to participate in the services specified in the Justice Plan dated 21 January 2014.
27 I do not propose to state the sentence that would have been imposed had Mr Cox not pleaded guilty[15].
[15]Section 6AAA(3) Sentencing Act
28 Mr Cox, I will just ask you to sign the paper that you agree to do this order for two years. All right. So I have signed that order as well, Mr Cox. That means that is now in place for the next two years. We will get a copy of that before you go. If you have got any questions about it, I am sure your lawyer will be able to help you out with that.
29 I thank everyone for their assistance in this matter and their patience with the length of time it has taken to get to this result. Nothing further? All right. Thank you.
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