Director of Public Prosecutions v Simon Mitchell Cooper

[2013] VCC 1763

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-10479

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON MITCHELL COOPER

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JUDGE:	HIS HONOUR JUDGE NORRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November
DATE OF SENTENCE:	19 November 2013
CASE MAY BE CITED AS:	DPP v Simon Mitchell Cooper
MEDIUM NEUTRAL CITATION:	[2013] VCC 1763

REASONS FOR SENTENCE

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Catchwords:             

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Pearce QC with Ms D Mandie	South Australian Director of Public Prosecutions
For the Accused	Mr I. Hill QC with Ms M. Fox	Galbally & O’Bryan Lawyers

HIS HONOUR:

Introduction

“The core of the difficulty lies in the complexity of the sentencing task.  A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender.  Very often there are competing and contradictory considerations.  What may mitigate the seriousness of one offence may aggravate the seriousness of another.  Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.”  (Wong v The Queen (2001) 207 CLR 584 at [77])

1.Simon Cooper appears today for sentence in relation to seven charges of indecent assault committed upon two victims between 1 January 1984 and 31 December 1986. The offences committed are contrary to s 44(1) Crimes Act 1958 and each carry a maximum penalty of five years imprisonment. The first six charges relate to the victim AA, to whom I will refer as ‘the first victim’, Charge 7 relates to his younger brother, BB, to whom I shall refer as ‘the second victim’.

2.The offender was aged between 27 and 29 years of age at the time of the offending and is now 56 years of age.  The first victim was aged between 17 and 18 at the time of the offences.  The second victim was aged also between 17 and 18 at the time of the commission of the crime concerning him. 

3.The Court has been provided with an extensive statement of facts as part of the ‘Crown Opening on Plea’ (Exhibit A), which was largely read in open court by learned Senior Counsel for the prosecution.  The essential facts relied upon by the prosecution, both as contextual evidence and in respect of the specific offences, are not in dispute.  One matter of dispute is whether the conduct of the offender relied upon by the prosecution to provide context to the offending could be categorised as “grooming” the victims in the sense of desensitising them to inappropriate sexual behaviour towards them by the offender. 

4.The offender has no convictions or charges at this time.

5.The evidence in the prosecution case includes the above-mentioned ‘Crown Opening’ (which included other material including submissions by the prosecution), the contents of the committal papers which were filed in the Court and three victim impact statements, one from each of the victims and a third from the father of the victims.  In the defence case was produced a psychologist’s report by Patrick Newton, who gave oral evidence in the sentence proceedings, a chronology, written and oral character testimonials, copies of media reporting relating to the offender and a statement from an ambulance officer who treated the offender on his arrest as well as detailed written submissions.  The Court has also been aided by skilled and helpful oral submissions from both prosecution and defence for which it is most grateful.  All evidence, documentary and oral, submissions and other material provided to the Court has been taken into account, although time does not permit reference to all of it directly. 

6.The offender did not give evidence in the proceedings, but a number of hearsay representations and admissions were admitted from material tendered in various forms by prosecution and defence.

The Crown Case

7.To understand the offending and the wider context in which it occurred it is necessary to set out a number matters that are established from the evidence.  I bear in mind in relation to the issue of fact-finding that I have undertaken that by regard to evidence produced by both prosecution and the defence, which is largely undisputed, in the context of the principles reiterated in The Queen v Olbrich (1999) 199 CLR 270, at [1] and [27]. Given the detail of the exhibited facts there is no need to reiterate them fully.

8.The offender was at the time of the offending a young barrister aged between 27 and 29.  During the time of the offending he was regularly a junior to the victims’ father, a prominent Victorian barrister, who was a mentor to him.  Since the offending the offender has been appointed as a Crown Prosecutor for the State of Victoria, which position he served with distinction for 16 years and was a prosecutor in the Solomon Islands for approximately two years.  He was appointed a Magistrate for the State of Victoria in February 2012.  On pleading guilty to these charges he resigned that position in or about August 2013. He is currently unemployed. 

9.The offender developed a close relationship with his mentor’s family and became almost part of the family, being regarded by the victims as another brother (one victim referring to him as a “second brother”) and a close friend of the victims’ parents.  The relationship between the offender and his mentor developed from the professional to the personal.  The offender had much contact with the victims as they grew through their teens and lived from approximately 1983 or 84 nearby to their home, when he purchased a home at which the victims were regular visitors. 

10.The victims described over the period of time between 1980 and 1983 the offender making what are now described as inappropriate comments and gestures, using sexual innuendo, touching, allowing himself to be seen naked and the like.  In around 1980, when the first victim was 14 years of age, he recounts the offender touching him in a way that at the time appeared to be a’ joke’ but which was later to be seen as inappropriate.  Examples of that conduct are set out in the’ facts’ in the Opening.  The offender’s inappropriate conduct towards the second victim was not as frequent, but both victims report inappropriate conduct by the offender in 1983 when they travelled interstate to Queensland and New South Wales with the offender (with the permission of their parents) which included intimate touching and/or cuddling in bed. 

11.The offender from 1983 also stayed at the home of the victims with the permission of the parents from time to time and there engaged in inappropriate touching of the first victim and the second victim when he stayed overnight.  The victims did not complain to their parents.  No doubt there was on their part a degree of bewilderment at the offender’s behaviour.  He was obviously liked and to some extent admired by the boys, or young men, who were not of an age to assess the inappropriateness of his conduct.  Also, the parents of the victims were favourably engaged with the offender and believed that their children were safe with the offender, in whose care their sons were entrusted from time to time.

12.The parents became aware of some of the conduct of the offender brought to their attention by the younger son.  Firstly, in about 1985 or 1986, after the offender wrote a note addressed to the second victim, who was then aged 16 or 17, stating: “I love you with all my heart, please fuck me at your earliest convenience”, which was shown to the victim’s father who confronted the offender.  After some prevarication as to its authorship the offender broke down and cried and told the father that he had written it under pressure and stress.  At a later time as I would understand the evidence, upon the commission of the seventh charge upon the second victim, that victim told his parents to “get that sick fuck out of the house”, causing the offender to leave immediately.  Notwithstanding these warning signals, although noting that the offending ceased with this last occurrence, the offender maintained a close personal relationship with the family and continued to be involved in family affairs of the victims.  In fact, as I understand it, he was invited to attend the wedding of the first victim.  I would assume some years after the offending.  It seems clear from the victim impact statements and the ‘statement’ of facts that the first victim has repressed the effects upon him of the offender’s conduct, not making complaint to his parents until very recent years.  The offending has had a greater impact upon him than that upon his brother, but he had been subject to more frequent and intense assaults. 

13.The first two indecent assaults in time reflected in Charges 1 and 2 were connected events and involved indecent acts described in paragraphs 27 – 28 of the Opening, when the first victim had consumed alcohol that left him passed out, only realising that the offender was indecently assaulting him when he awoke and was semi-conscious.  The victim struggled to resist and the offender ultimately desisted.  The offender had consumed alcohol on this occasion.  For Charge 1 he pressed his penis against the victim’s anus and for Charge 2 he touched the victim’s genitalia.

14.Charges 3, 4 and 5, involve an event in 1984, again when that victim was intoxicated from drinking strong alcohol, as was the offender, and occurred when the offender whilst in bed with a female friend, invited the victim to participate in a somewhat bizarre ménage à trois, during which the victim consensually had sexual connection with the young woman but during which the offender indecently assaulted him in the manner described in paragraphs 31, 32 and 33 of the prosecution’s facts.  The acts included touching of the victim’s genitalia and indecent actions directed towards anus of the victim by use of the offender’s penis and finger.  On this occasion, at the completion and or during the commission of the offences when the victim resisted, the offender persisted with forceful bodily actions for a period of 10 minutes before the victim got out of the bed and slept elsewhere. 

15.The last offence against the first victim involved the offender attempting to masturbate the victim at the offender’s home, when the two of them were intoxicated after a night out with the victim’s mother.  The victim found himself with the offender lying in his bed and rubbing himself against the victim and the victim resisting.  This event so disturbed the victim that he fled the house in bare feet and hid in a telephone box.  Whether he was followed by the offender I am unable to conclude with certainty.  The detail of this matter is set out in paragraphs 35 and 36 of the ‘facts’ produced. 

16.The last offence in time committed against the second victim involved inappropriate touching of the victim on the genitals and the offender pressing himself against the victim, in the victim’s bedroom at his parent’s house, but not whilst he was in bed and while he was wearing underpants.  This was the occasion that that victim told the offender he was a “sick fuck” who needed “help” and complained to his parents that he should leave the house.

17.The details of the offending came to light when the first victim gathered the considerable courage to reveal all to his parents, through his father initially, in late 2011.  He then took the next courageous step of giving a statement to the police in late 2012.  Police then obtained other evidence, including a statement from the second victim and the parents of the victims, before conducting an operation which involved the first victim participating in pretext telephone calls with the offender and the legal, but surreptitious, recording of a private conversation between the offender and the victim at a cafe on 14 January 2013.

18.The Crown’s ‘Opening’ sets out extracts from the variously recorded conversations with the offender, which show the offender initially in denial when confronted with the allegations of the victim on the first occasion by telephone call on 10 January 2013.

19.The first pretext conversation on 10 January would have come, for the offender, ‘out of the blue’, so to speak.  Accepting his subsequent partial remembrance of many of these events, denial outright initially is an understandable defence mechanism in the circumstances in which he was confronted.  The next pretext conversation three or four days later would not have come like the thunderbolt that the first one did with its dramatic “revelations” of the victim’s feelings and recollections.  The offender on this occasion was more conciliatory, revealed a willingness to accommodate what he could not remember and made statements of consolation and concern for the victim.

20.This victim, in his victim impact statement detailing the profound effect upon him over many years of the offender’s criminal conduct, has difficulty accepting that the offender has genuine concern for him.  I appreciate of course, this victim’s bitterness towards the offender, which is understandable and justifiable.  Of course, this Court is not aware of the other vicissitudes of life that have impacted upon the victim, as they impact upon all of us, without acknowledgement, or appreciation.  But there can be no doubt, whatever be the full story, that the offender’s conduct has had a profound effect upon the first victim especially.  I have also had close regard to the impact upon the victims’ parents, expressed movingly by the father, as well as the restrained but compelling statement of the second victim. 

21.Following upon the last of the pretext conversations, the victim met the offender face-to-face at a café.  The offender made a number of admissions during the recorded conversation and attempted to explain his behaviour, linking it to his history of depression, its relationship possibly with his own family situation (to which I will refer shortly) and accepting that his circumstances had led to him becoming very dependent upon the victims’ family. 

22.He apologised for his conduct, did not deny what was being put to him by the victim although unable to remember the details of many of the matters alleged, conceded that he had become “engrossed” with (the victims’ family) and sought forgiveness.  It is not suggested, nor could I reasonably find, that the search for forgiveness was an attempt by the offender to prevent further action being taken against him.  The offender said amongst other things that the revelations of the victim left him “petrified”, which I take to mean a reference to his fear of the consequences of these revelations in a non-legal, or non-forensic, context.  The offender has also told the psychologist that his specific recollection of the various allegations is sporadic and incomplete or relevantly absent.  I have closely considered whether this is self serving or an aspect of prevarication by the offender. 

23.However, the offender’s unguarded periods of conversation that were recorded with the victim on 14 January 2013 when he could not have realised that those conversations were recorded, gives strength to the reliability of the matters revealed in the interview conducted with him after his arrest on 16 January 2013, when he was interviewed in a very lengthy electronically recorded interview and made partial admissions against interest within his knowledge.  Substantial consumption of alcohol before the incidents giving rise to Charges 1-6 may have contributed to an absence of specific recollection.  There is a possibility that the offender has also, to a large extent, shut these matters out of his mind and recollection as the years have past and he has moved on in his life.  The precise recollection of the victim is understandable, given the impact upon him of the events and their significance in his life.  For reasons found in the opinion of the psychologist there may be reasons for the offender not to have seen them as significant. 

24.It is to the offender’s credit, being a skilled and experienced criminal lawyer, that when arrested he agreed to participate in an extensive interview, when he could have exercised his right to silence, and then made admissions, at least partial admissions, that have aided the prosecution of him in relation to the current charges.  This was done by him, although he was ‘in extremis’ upon his arrest, later requiring after his interview and charging intensive psychiatric and psychological treatment. 

25.I appreciate that I do not have any evidence from the offender directly about such matters and am required to rely upon the various hearsay assertions (or admissions) made by the offender to the victim, the police, the psychologist and the various character referees as to matters reflecting upon his state of mind and his recollection of relevant events.  I have no doubt that when arrested and then interviewed the offender’s mind must have been in turmoil given, as I believe I expressed it in the course of submissions, that it was obvious to him that his world was crashing down around him in ways that six days before he could not reasonably have contemplated.  That he had the presence of mind in the circumstances to allow himself to be interviewed in the manner I have outlined, that he gave what I believed to be a full and frank account of what he could remember at that time, is to his credit.  The Crown accepts this to be so.  I have evidence from an ambulance officer, who treated the offender after the police had arrested him, who observed him on a footpath outside his home being cradled by a woman “lying on the ground, tearful and thrashing his body around in what appeared to be emotional distress”.  She states: “The patient provided no insight as to what had happened that day”; the relevant information coming from the detectives.  The offender was hyperventilating and he had to be “coached” to breathe, and was subsequently settled with the assistance of his wife. 

26.Judges, of course, approach claims of partial recollection, or no recollection, by offenders of their misdeeds, as a general rule, with considerable circumspection.  In many cases this is a convenient way of avoiding unpalatable truths or harsh realities.  Such prevarications on many occasions lead to avoidance of responsibility up until jury verdict.  Such is not the case here. 

27.The prosecution conceded that the pleas of guilty were entered at the first reasonable opportunity by the offender, as pressed by the offender’s learned Senior Counsel.  It is correct that the matter was listed for committal and notification was given that particular witnesses would be required to give evidence at the committal proceedings, which caused distress principally to the first victim and his family.  This I accept and acknowledge, but the realities of criminal litigation are sometimes beyond the thrall of both victims and offender’s. 

28.Given that I understand that other allegations had been brought against the offender which have not been pressed, leaving the seven offences to which the offender has pleaded guilty, and noting that the current situation arises from ongoing negotiations properly undertaken by representatives of the Director of Public Prosecutions and the offender’s legal representatives, it can be fairly concluded that the pleas of guilty have served a very high utilitarian purpose.  Eventually, the victims and their family have been spared the ordeal of having to give evidence and their account of relevant events has not been tested or questioned, within the parameters of the matters for which the offender is to be sentenced, although two of the victims have had the distressing experience of delivering their victim impact statements to which I have obviously had regard and given appropriate weight.  The need to give victim impact statements arises, of course, from the criminal conduct of the offender, but it is not a matter that detracts from the weight to be given to the pleas of guilty. 

29.The pleas of guilty also reflect, what is obvious from the secretly recorded conversations had with the offender by the first victim and the contents of the police interview, that the offender expresses contrition and regret for his conduct and concern for the welfare of the victims that is timely to the investigation.  One of the sad realities of this matter is that neither victims, nor offender for that matter, have had any opportunity for closure given what the evidence reveals to be a continuing and proper relationship between the offender and the victims in a social and/or professional context for some years after the last offending as if nothing had happened.  This is not the fault of the young victims, nor the parents.  This is because, for varying reasons, the conversation that the family needed to have about the conduct of the offender, so that the full picture could emerge, never occurred and the offender continued in the belief that his conduct towards the young victims had not caused the damage that is evident now. 

30.In assessing the offending, the prosecution is correct to point out that the offending does not represent isolated incidents.  The view of the first victim, particularly, which I have noted, is that the conduct of the offender was deliberate and manipulative. In fact, manipulation is referred to a number of times by that victim and no doubt is genuinely seen by him as the case. 

31.The prosecution characterises the offender’s conduct towards the victims as “grooming” in the three or four years leading up to the commission of the offences reflected in the charges. In fairness, the learned prosecutor’s oral submissions made it clear that the prosecution did not contend that the offender had been grooming the victims to commit specific offences on a “particular date”.  But, rather, the offender was “desensitising” the victims to his inappropriate sexual conduct.  This may be so, seeking to apply the wisdom of hindsight, as everyone involved in this matter must, given the main players reflect a lack of understanding of the seriousness of what was occurring (which is not to be taken as a criticism of the victims).  However, the psychological evidence concerning the offender, which is largely uncontested, reflects on the offender having a somewhat complex psychosexual development.  This analysis I accept as, at least, reasonably possible and consistent with other aspects of the offender’s contemporaneous conduct that ultimately does not permit a finding adverse to the offender that his treatment of the victims can be categorised as deliberate predatory behaviour.  Although it may so appear viewing it from the perspective of the victims without regard to the subjective circumstances of the offender at the time.. 

32.Accepting the history of the development of the offender as given to the psychologist as accurate, it is apparent that the offender, who was the youngest of his family, with older siblings leaving the family home by the time he was in early teens and who lost his father to cancer in 1980, was left bereft of a father figure and sibling support and sought comfort in the bosom of the family of the victims.  I am not satisfied that he sought that comfort for the purpose of sexually predatory behaviour towards young men 10 years or so his junior.  But he developed a relationship of an older sibling which he wrongly assumed might permit him to take liberties with that relationship in the belief that it was an acceptable manner of interplay with the two primary victims, engaging in what can be seen as what I describe as  ‘ sexual adventurism’.  He had ‘confidence’ in the relationship, but not ‘control’.  He did not live with the victims and they were free to come and go as they pleased, in the general sense.  They were obviously free to complain, the second victim in fact did that.  They were not threatened to be quiet. 

33.The psychologist expresses the opinion, based upon the history provided by the accused that he was sexually immature and had not developed by the time of this offending any true intimate relationship, notwithstanding the presence of a consenting female in the ménage à trois at the heart of Charges 3, 4 and 5.  There can be no doubt that the early stages of the offender’s conduct towards the victims, with relatively minor touching, exposure and inappropriate comments were developments in a close personal relationship where. If the victims were being desensitised, so too was the offender to the folly of this behaviour which led to the commission of the offences. 

34.In the majority the offences (but not the last in time) alcohol had its part to play in the conduct on the part of the offender.  Not to excuse his conduct, but to understand it, it lowered his inhibitions and restraints to permit him to act, if not in a violent way, but sometimes in a forceful way, notwithstanding that the victims were resisting or rejecting his advances in various ways.

35.The facts of the case raise serious questions as well about the sexuality of the offender at the time of the offending.  This is a matter that the offender does not seriously address in his dealings with the psychologist.  I believe that he is incapable now of addressing it.  The love letter to the second victim reveals an emotional and sexual attraction that transcends calculated, predatory behaviour.  The evidence available to the court on this matter is incomplete, albeit that the psychologist is unable to conclude the existence of any psychosexual condition that may explain the offender’s behaviour.  There is no psychological analysis to support a conclusion that the offender was at the relevant time paedophilic.  There is no evidence that the offender has shown expression of his sexuality in similar ways to children or youths, other than the victims of these offences. 

36.It goes without saying that the offences are, to varying degrees, serious offences where the offender, if not deliberately nor with connivance, objectively breached the trust reposed in him by his mentor and his mentor’s wife when he was welcomed into the family and became part of their family.  This generosity which the offender accepted, embraced and appreciated, he ultimately betrayed.  That occurred in circumstances where because of his passion, his intoxication and/or his weakness he could not control himself on occasions , as the facts make clear.  It is also to be fairly said that with each incident the seriousness of it increased given what had gone before.  Although, within particular incidents, as they have been categorised in the facts, the objective seriousness of particular actions may be regarded as more serious than others occurring at the same time.  Given the connectedness of those particular events, such as those categorised in Charges 3, 4 and 5, for example, these are matters of slight degree.

The subjective case and mitigating factors

37.The outline of the context of the offending has set out some of the background of the offender. The evidence as to his career and public accomplishments is not challenged or in doubt. The evidence establishes that the offender has had a successful career as a barrister, particularly as a Crown Prosecutor in Victoria and in the Solomon Islands, which has brought considerable credit to the prosecuting authorities of those jurisdictions.  The offender has also served in local government as a councillor and as Mayor of a suburban council in metropolitan Melbourne in the 1990s.  The chronology provides precise details of his service in these positions.  I accept the evidence contained within the many powerful and illuminating references from people of high accomplishment, standing and integrity and drawn from the oral evidence of character witnesses that the offender has made a substantial contribution to the community since this offending with which I am concerned, both within his local community and the legal community.  The character and reputation evidence was very impressive.  Within the references and the evidence of witnesses called to give oral evidence, including a serving Judge of the County Court of Victoria, a Magistrate, a Senior Crown Prosecutor and another senior barrister, it is established that the offender has been a conscientious worker, who has displayed not just great legal skill and capacity, but deft handling of complex and difficult issues that have arisen in the execution of his duty as a prosecutor, as well as integrity, honesty and courage in his professional and personal dealings.  He is regarded as loyal, dependable and honourable, save, of course, for his criminal conduct revealed in these matters.  Three witnesses that gave oral evidence of his character and accomplishments in the practise of the law also gave detailed evidence of their experience of him exhibiting severe symptoms of depression and anxiety. 

38.Those experienced in the law and its workings well know that ‘success’ in ethically and properly representing a particular interest is not solely achieved by legal and advocacy skill, but often requires considerable personal acumen in dealing with people and institutions, strong principled behaviour that requires resolution, sometimes speedily, of conflicts and crises as they arise and, of course, the right degree of humanitarian values.  His referees speak as one of his capacity in these regards and the toll upon him over time of his responsibilities.  I accept throughout his professional career the offender has suffered severe bouts of anxiety, perhaps even what might be described as panic attacks that have been witnessed by those of his colleagues who have given evidence in these proceedings.  There is some evidence of past psychological or medical treatment for these crises and overwhelming evidence of the personal impact upon the offender from time to time, on occasions, leaving him incapable of functioning.  He has had to put aside the impact of his work upon his personal condition to continue fulfilling the responsibilities cast upon him.  His Honour Judge Ryan, the Senior Crown Prosecutor and Robert Barry reflected upon his professionalism and devotion to duty in times of extreme emotional distress, either as a reaction to the pressures of his work or for other reasons, both in Victoria and the very difficult conditions that existed in the Solomon Islands in 2004 and 2005. 

39.Little is properly acknowledged, either within the legal community or without, in regard to the deleterious impact of deeply distressing and confronting events that are played out in courts. The lack of opportunity for legal professionals, including judicial officers, to debrief, so to speak, or unload their professional burdens and mitigate the damage done by exposure to horrific and confronting events and the pressures of personal professional responsibility are not often acknowledged. 

40.His professional colleagues attest to a man of honourable intention and performance, devoted to his duty, unflinchingly in carrying out of the burden of his various offices and unstinting in his willingness to take on responsibility and discharge it to the best of his ability.  The judiciary of this and other States and Territories and the general public are very much indebted to the professionalism of the various officers who represent the interests of the State to prosecute offender’s to bring them to justice.  This high standard of professionalism, skill and fairness was on display in this matter by those who prosecute this offender.  The offender reflected his high professional standards by what Judge Ryan described as his “appropriate resignation” from judicial office upon his pleas of guilty to these offences.  As a judicial officer he performed his duties with fairness, industry and enthusiasm, finding, surprisingly, some freedom from his bouts of anxiety when discharging the burden of judicial office.  This reflects his satisfaction and fulfilment in service as a Magistrate.  As Judge Ryan emphasised, the offender is a man of many talents. 

41.His referees variously attest to his expressions of remorse for his offending conduct, his regret for the harm that he has caused his victims and as to the severe impact upon him of the consequences of his conduct.  Obviously, it is inevitable that a person who commits crimes of this character can have no place in the legal profession.  The loss of career and status is an inevitable consequence of disclosure and admission of guilt. Nevertheless, the loss of his career, his status as a former leader in   local government and as a lawyer and judicial officer, his reputation amongst his friends and colleagues and the damage no doubt done to his marriage and his family are relevant matters to consider when assessing the measure of punishment for the crimes that are for sentence today. 

42.One witness who gave oral evidence of his good character and his accomplishments, Magistrate  Macpherson, who attended University with the offender in the mid 1970s, has remained a friend and recently was a colleague on the bench, expressed the view, in the context of being shocked at the allegations made against the offender, that it was hard to reconcile the person she knew with the character of the allegations brought against him.  This, the Crown submitted, may be seen as reflecting upon the fact that the nondisclosure of the offending at the time enabled the offender to take a position in society to which he was not entitled.  There is some truth in this.  No doubt, the lack of timely disclosure has permitted the offender to continue with his career and gain, or maintain, the respect and support of his many friends and colleagues who have spoken so highly of him. 

43.On the other hand, apart from an unsolicited confession at the time of the offending to people in authority, the delay in the prosecution of the matter was something over which the offender had no control.  As events have transpired, by his conduct since the offending, the offender has demonstrated his capacity to make a significant positive contribution to his community in a number of ways, to establish a loving family environment for his wife and children and to demonstrate that the conduct that he admits, serious, as it is, was not that of a person who continues to be a danger to the community and other individuals.  His demonstrated capacity for productive and honourable conduct, such as attested to by the many character referees, shows not only his capacity for rehabilitation, if not redemption, but also the progress of his rehabilitation.  As well it shows that the offending with which the court is concerned is to be understood in the context of the complex social and psychosexual dynamics earlier outlined. 

44.Also, it is very common for people that know an offender well to struggle publicly and privately with the task of reconciling what they know of the offender with proven misdeeds.  This method of expression is commonplace by witnesses.  It can be an acknowledgment of an appreciation of the seriousness of the circumstances in which they provide their opinion as to character and related matters.  Such is the case here and I do not believe it can be used against the offender in this matter as was properly suggested by Senior Counsel for the prosecution. 

45.The only other evidence that I specifically wish to deal with in this context is the evidence of the psychologist relating to the offender’s treatment, his assessment of the offender’s symptoms both historically and at the present time and the future disposition of the offender  either medically, psychologically or by counselling.  I accept that the offender when arrested suffered a severe panic attack, consistent with a person with a history of depressive symptoms and anxiety attacks, mainly undiagnosed and not properly treated.  At the time of the offending the offender was displaying symptoms of depressive illness and anxiety, which may have influenced his conduct.  Contemporaneously he told the victims’ father that inappropriate conduct was so explained, for which there may have been some element of truth having regard to the oral evidence of former professional colleagues. 

46.I hasten to say that I am not in a position to conclude that there has been a diagnosis of a long-term major depressive illness.  Mr Newton is not, in my view, qualified to make that “diagnosis”.  That is, however, a reflection of the fact that Mr Newton is not medically qualified.  He impressed me as a highly skilled professional, who articulately and comprehensively expressed his opinions in conjunction with the literate exposition of his opinions in his comprehensive report. 

47.That report confirms the severe reaction of the offender to his charging which, to my mind, reflected very much his guilt and regret for what was alleged against him, and a lack of capacity to rationally deal with the truth of the situation.  This is not consistent with a person with a sociopathic or psychopathic personality, which is not identified by Mr Newton, or such approach to the offending.  I accept that he was genuinely shocked by the allegations coming to light, in part because he had repressed them, in part because of his grief at the reality of the situation of his victims and of course in part because of his realisation that his career and his reputation were destroyed. 

48.The offender was for a period of time after his arrest hospitalised in a clinic and received treatment, including medications  which would only work if the conditions to which the psychologist referred were genuine.  I accept the offender has been stabilised by those medications and he will need to continue them in the near future.  I accept that the offender, to the extent that he permits himself to remember relevant events, has shown insight into his offending and taken responsibility for his offending.  By seeking regular psychological treatment he has shown that to be so, at least in part.  I have already noted the significance of his sexual development and particularly his sexual immaturity to the offending.  There is here the context that in his 20s he was apparently abusing alcohol to relieve work-related stress, which contributed to his lack of inhibition on most occasions that the first victim was sexually assaulted.

49.Apart from the current offending the offender did not have any history of other antisocial or sociopathic behaviour.  The offender was, and still is, a person who set very high standards for himself and sought to give the appearance of being a perfectionist.  Yet, there clearly were feelings of insecurity and lack of self worth that drew him to the support of the victims’ family. 

50.He exhibited to the psychologist no symptoms of sexual deviancy (as that is understood by medical professionals) in the histories given to the psychologist.  Presently, taking into account all the evidence, the period of time since the offending and the views of the psychologist, he is at low risk of reoffending.  In fact, I believe that the risk of other young people being at risk from him is almost non-existent. 

51.The offender will no doubt continue to have recurrent symptoms of depressive illness, depending upon the pressures and triggers which may arise in the future, as they have arisen in the past.  There is no doubt the offender needs ongoing treatment, both by medication and by counselling, including Cognitive Behaviour Therapy.  The matters that militate in favour of the offender’s lack of threat to others include, his stable domestic circumstances enjoying the continuing support of his wife and family, his willingness to undertake treatment and comply with the directions of his health professionals, his demonstrated capacity to avoid offending over the last 27 or so years and the absence of threats to his stability, such as a continuing alcohol or substance disorder. 

52.I accept that if he was sentenced to a term of full-time imprisonment there would be particular risks for him beyond those expected by most members of the prison population.  As the Crown pointed to by reference to the facts of the case and as the defence emphasised in this regard, the circumstances of this offender with his background and this type of offending are, in all practical terms, unique.  In prison he would be the only judicial officer and the only former Crown Prosecutor to be imprisoned for crimes of this type.  Of course, correctional authorities have the responsibility, not the courts, for the welfare of people rightfully imprisoned.  Many offenders, by reason of the crimes or their personal characteristics, are vulnerable in custody.  However, a judicial officer who has been a Crown Prosecutor in custody would present unique, if not insurmountable, difficulties for maintaining his protection.  The circumstances of the offender’s custody, in order to ensure that protection, would no doubt present hardships well beyond those to be expected by other offenders and the general prison population. 

53.I hasten to say that high public office or high public reputation are no bar to imprisonment when the crimes demand that be so, all relevant matters taken into account.  But for all offenders, the circumstances of the custody of the individual are properly relevant matters to take into account in determining, in conjunction with the myriad of matters relevant, the appropriate disposition of the offender.  Mr Newton expressed the opinion, which I accept, that with a pre-existing disposition to anxiety and depressive symptoms in custody the offender would experience episodes of serious mood disturbance at levels considerably greater than would an offender not afflicted with such conditions and that such events would be more frequent and last for a more extended duration than would ordinarily be expected.  I note that amongst other matters relevant to the assessment of the offender’s time in custody is the notoriety he already endures from intense media coverage of his offending. 

54.Apart from some press releases circulated to members of the Judicial College of Australia on a weekly basis, I was not personally familiar with the publicity and media coverage concerning the offender.  Counsel for the accused has provided to the Court a number of articles relating to the offender’s appearances in court and the allegations against him.  In a major article in one Melbourne  newspaper that was exhibited the offender was pictorially linked to a notorious serial sexual predator in Britain, Jimmy Saville, whose victims are said to number in the dozens over decades, hiding behind a veneer of respectability that earned him a knighthood and permitted him the opportunity to commit the crimes alleged.  Those allegations include the abuse of children in hospitals, institutions and even on the sets of his television shows. Underneath the photographs side by side of Saville and the offender was the photograph of Rolf Harris.

55.Interestingly, I could find no reference to the offender in the body of the article that accompanied the photograph, which was concerned with the extent of child sexual abuse, the definitions of ‘paedophile’, ‘sex offender’ and/or ‘child molester’, the characteristics of paedophiles and related topics.The article itself is worthy but the pictorial content is misleading .  Although there was a reference to the “… Jimmy Saville investigation in Great Britain, which has embroiled dozens of celebrities, including Rolf Harris”.  What Rolf Harris thinks of his photograph appearing in the same article, given that he has pleaded not guilty and is yet to be found guilty, is anyone’s guess. 

56.The only reference to the offender by name in the article is merely to describe his photograph and as a person “who pleaded guilty to child sexual charges in Melbourne last month”, which on the Crown case, is not technically correct.  Many of the other articles are unremarkable, save for reflecting the interest in the matter, which I hasten to say is entirely proper, including coverage of his stepping away from his professional duties and related matters. 

57.Widespread publicity concerning crimes committed by people with important public responsibilities, or who are otherwise in the public gaze, is of course entirely proper.  In many respects it helps serve the purpose of general deterrence, because it spreads the message throughout the community that persons who are popular, important, well-known or privileged are not free to commit crimes and will not escape detection, prosecution and appropriate punishment.  Of course, the irony, or the hypocrisy, of a life lived in public as a law-abiding citizen when the person is an undetected offender is properly a matter for public comment, criticism and disclosure.  But when such matters are exposed in the media, there may be prices paid by the offender which go beyond the public humiliation and denunciation that comes with charging, admission of guilt and appearance in court.  One such price is the attention of the community that may lead to undesirable consequences, including promotion of a ‘lynch mob’ mentality among some members of the public and the risk an individual may be the recipient of punishments beyond those required by the law.  There is always the risk of the misrepresentation of the true nature of the crimes until the ’facts’ are proven in court, as has happened in this matter in some reporting.

58.However, the offender cannot be heard to complain that his image is widely shown by the media and his crimes exposed.  But his crimes must be exposed for what they are, not for what they are thought to be but are not.  His notoriety thus leads to public opprobrium, some of which is undesirable.  Importantly, his family, who are innocent of any crime, must share the burden with him.  I do not regard the publicity which I have read as extra curial punishment as such by itself, but it does demonstrate, in part, the price the offender has paid for his offending and the effect upon him and his family of his exposure, in conjunction with the other matters to which I refer will refer.

Submissions of the parties and other issues arising from the evidence

59.As would appear from the findings above I have already had explicit regard to a number of the submissions have been made by the parties in writing and orally.  There are some particular submissions that require specific attention, in part because several of them are concerned with some legal issues that are required to be addressed by the court.

60.Noting, of course, the responsibility of a sentencing judge to act independently of the parties and assess matters in the context of the submissions put by the parties, but being also free to reach contrary conclusions, I have been greatly assisted by the excellent and balanced submissions of both the prosecution and the defence.

61.As the prosecution correctly states, the Court is required to have regard to the nature and gravity of the offending, in the context of the terms of s 5(2)(c) Sentencing Act, 1991. The offending is serious offending, although I do not accept the submission that any particular offending was relevantly accompanied by acts of ‘aggression’ by the offender prior to the offending, in order for the offender to inflict his will upon the victims.  There were no threats of violence, nor acts of violence, before or during the offending in relation to the first offender, other than incidental to the acts that constituted acts of indecency on his part.  On occasions he took advantage of the intoxicated state of a young man not experienced in such matters.  There is reference in relation to the offender, on the commission of Charges 3, 4 and 5, being aggressive to the victim, in the sense of being persistent and insistent.  But no acts of independent acts of violence are alleged, other than those inherently part and parcel to the offending.  There is the suggestion of the offender pursuing the victim after the commission of Charge 6, but the victim himself is not sure that in fact it was the offender who was driving the relevant motor vehicle.  Even if it was the offender, it would be pure speculation to conclude he intended to harm the victim.  There is no evidence of aggression in the commission of Charge 7, nor in relation to Charges 1 and 2 although he took advantage of the victim’s intoxication.  I bear in mind, as the Crown correctly points out, that in assessing the seriousness of the acts of indecency, I cannot take into account aggravating circumstances which could give rise to more serious charges being preferred or admitted, as discussed in De Simoni by Gibbs, CJ of the High Court and by Kirby J in Olbrich, each cited helpfully by the Crown. 

62.Here there are some breaches of trust in several of the incidents (but not all) that were reposed in the offender by the parents of the victims and to some extent the victims.  This was the trust given to a close associate of the family who did not purport to exercise parental control, or could use that trust to disguise his crimes.  As recognised in sentencing there are levels of breaches of trust and here they are not at the highest level. 

63.Whilst I am dealing with separate offences showing a repetition of conduct on four occasions, involving two victims, in a context of previous inappropriate sexual conduct or behaviour by the offender, I am not sentencing the offender in respect of representative offences, nor in the context of multiple proven offences in Victoria other than those charged. I am informed by the Crown that I cannot  punish the offender for offences with which he has not been charged, citing Rankin and Dunne, two decisions of the Victorian Supreme Court from 2001 and 2003, as well as the decision of McMaster, a decision of the Victorian Supreme Court of Appeal from 2008, again with specific references helpfully provided.  I have had regard to those decisions.  I have taken into account the difference in age between the offender and the victims and the character of the relationship between the victims and  the offender.  Clearly for a period of time they looked up to him and trusted him.  It must be said that the second victim, particularly, was able to promptly, and it would seem effectively, deal with the offender’s advances when he acquired some maturity. 

64.The Crown submits that the offending is aggravated by the offender’s position as a “lawyer and barrister (sic)”.  True it is the offender’s relationship with the victims was developed in the context of the offender’s professional relationship to the victims’ father, but the evidence reveals that his conduct was more explained and connected to the dynamics of the personal relationship between the offender and the victims’ family and not in furtherance of his professional duties. 

65.However, even where there has been no breach of trust arising from his station in life or where an offender is not acting in his or her professional capacity at the time of offending, this offending is aggravated when the offender has a special relationship to the law and its enforcement.  Amongst other reasons, because the public expects that lawyers will observe the law and uphold the law.  Here, the offender at the relevant time was a young lawyer.  I particularly note that the offences were committed when the offender was not a Crown Prosecutor, nor a judicial officer.  A Crown Prosecutor or a judicial officer who commits crimes such as these whilst in office, even disconnected to their official duties, should expect condign and/or exemplary punishment to set a proper example to others. 

66.There is no suggestion that the offender used his legal training to avoid detection or to silence his accusers at any stage.  He was at risk of disclosure at every point of the offending.  In fact, he was exposed, but the significance of his conduct was not fully appreciated at the time. 

67.In the context of s 5(1) Sentencing Act 1991, the Court must take into account general deterrence as a relevant matter to sentencing for offences of this type, denunciation of the conduct of the offender and just punishment. I am also required to have regard to the rehabilitation of the offender. The Crown concedes that specific deterrence and protection of the community in this matter are of less relevance, or weight, given the fact that the offender by his conduct over the last 27 years has demonstrated his capacity to avoid offending and to make a productive contribution to the community.

68.The weight to be given to the plea of guilty for its utilitarian value is conceded by the Crown.  The Crown also concedes that the offender has shown remorse, through his partial admissions and his pleas of guilty, that the offending was “30 years ago (sic)” and that the offender has been “of unblemished character” since. 

69.With regard to the range of sentence, the Crown points to the uniqueness of the situation, that an immediate period of imprisonment would be appropriate given the circumstances of the offending and that the court is required to take into account current sentencing practices at the time of offending.  In this context, a wholly or partially suspended sentence is submitted by the prosecution as possibly available and is not outside ‘the range’ for this course of conduct charged (s 27 Sentencing Act 1991).

70.I have been provided a summary of sentencing statistics for the period of time between 2007 – 2012, which state that one third of people sentenced for indecent assault received a wholly suspended sentence of imprisonment, 30% received a period of imprisonment, 8% received a partially suspended sentence, with the range of sentence for full time imprisonment being between four months with no non-parole period to three years and six months.  The most common wholly suspended sentence length was one year (see para 57, Crown Opening – Exhibit A).  I am mindful, I hasten to say, of the incompleteness of the information I have from Victorian statistics, and I bear in mind of course that the profiles and circumstances of individual offenders vary greatly, as do the circumstances of the offending and the context in which specific offences are to be considered.  Here I am considering individual offences, a number of which are related to one another, but which occurred in the course of a series of incidents.  The statistics for the period when the offences were committed is not made known to this Court. 

71.In reflecting upon the proposition that the sentence should reflect the sentencing practices that were current of the time, noting the decision of Stalio ([2012] VSCA 120), also cited by the defence along with other related authorities, the prosecution pointed out that there is no satisfactory evidence that different sentencing practices existed at the time of the offending. However, a lower maximum penalty applied at that time than does currently apply. It is to be fairly observed that across jurisdictions in Australia, the full appreciation of the damaging effects of sexual assault and the seriousness of the conduct now held by judicial officers, prosecuting authorities, the police and the legal profession at large was not as widely held or observed in the mid 1980s, much to the detriment of victims. This was, of course, a contributing factor on occasions to victims not reporting sexual assaults. In Stalio, the Court of Appeal noted that whilst current sentencing practices refer to practices at the time of sentence, “equal justice” may require a judge to have regard to sentencing practices at the time of offending (at [34]-[35]: see s 5(2)(b) Sentencing Act (Vic)). I note what the Court of Appeal in Stalio said about the evidentiary hurdles in establishing a sentencing pattern at the time of the offending.  Although Stalio is not a strictly comparative case, it provides some assistance, although the offending is very different, more intensive, older and the offender had nothing like the favourable psychological or personal profile of this offender.  I was not referred to any purportedly comparative cases as such, the Crown freely conceding in its written submissions that there was no comparative case or similar case that it could refer the Court to given the combination of circumstances here. 

72.The Crown was asked for a “MacNeil-Brown range” ([2008] VSCA 190) and suggested that in those matters where terms of imprisonment were appropriate, the appropriate range was between 18 months and three years. The Crown was reluctant to indicate the range of discount that would apply in recognition of the plea of guilty, in other words, the extent to which the sentence imposed is to be addressed by reference to what sentence ought to have been given, but for the plea of guilty (s 6AAA Sentencing Act).  However, it was indicated to the Court that an effective reduction of up to 30% may be appropriate giving full weight to the utilitarian value of the plea of guilty and other relevant considerations such as remorse, contrition, etc.  Although this matter was not developed in submission, I expect that considerations now required pursuant to that section did not apply in the mid 1980s.  The section did not exist then.  Sentencing then would not have required the express quantification that the section now impliedly or expressly dictates.  Drawing a parallel with New South Wales practice in this area over the last 30 years, rarely would judicial officers have been required in the 1980’s to apply their minds to assessing the specific impact, or relevance of, the weight to be given to the plea of guilty, but rather approached the matter with the instinctive or intuitive synthesis approach reinforced in the later High Court decision of Markarian [2005] HCA 25 (eg at [65]-[74], per McHugh J) in relation to other factors relevant in sentencing.

73.Largely speaking to his written submissions, counsel for the accused stressed the period of time that had elapsed since the commission of the offences, the prior good character of the offender before the offending, and the demonstrated good character, rehabilitation and redemption of the offender since the offending ceased.

74.It was submitted that the delay between the offending and the prosecution of this matter was a powerful mitigating factor, in the context discussed by Maxwell P. in Merritt (and others), [2007] VSCA 1, at [27]. The learned President of the Court of Appeal noted the effect which the lapse of time, however caused, has on an accused person, focusing upon the issue of rehabilitation. The Victorian Court of Appeal adopted the observations of West Australian Court of Criminal Appeal in the decision of Duncan, that “where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation”.  As the High Court observed, by the majority in Veen (No 2) v The Queen, (1988) 164 CLR 465, at 476, the purposes of sentencing are guideposts that sometimes point in opposing directions.

75.The majority in that decision famously said immediately beforehand: 

“….. (S)entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment.  The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.  The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case.” 

76.It is submitted that the offender had substantially rehabilitated.  His age now meant that he is less likely to reoffend and there are considerations of fairness arising from delay in prosecution, uncertainty or curtailment of liberty after the offences came to light.  These are practical considerations that require a degree of leniency to be extended.  His current circumstances mean that by reason of his health and his position in the community, the service of a term of imprisonment will be more onerous than would be usually expected (referring to the Queen v MWH [2001] VSCA 196, at [18], per Callaway JA). Reference should also be made to the dicta of his Honour at [17].

77.In this context, I accept the submission of the Crown in reply that the delay is not attributable to the prosecution of the matter by the Director, or those who act on his behalf, and this is not a case where the offender has been left in a state of uncertainty because of the conduct of the prosecution, or because of delays that are not of his making.  The prosecution has been undertaken promptly and efficiently.  Both parties have expedited the course of the matter to the point of finalisation without any unnecessary delay, which is to the credit of both the prosecution and the defence.  However, here the relevant delay is between the offending and the commencement of the prosecution, which was between 27 and 29 years approximately.  This is no reason to blame the victims for the delay in coming forward.  The second victim’s response to the offender may have, with the wisdom of hindsight, led to public disclosure but that did not happen.  Whatever be the explanation, after ceasing offending the offender went on with his life without harm to others, doing public and private good.  Non-disclosure permitted him to do this it is conceded, but this delay also had the beneficial consequence of his contribution to the law, to the community in the prosecution of offenders and to his local community through his service in local government. 

78.I do not accept the submission that was made by the prosecution concerning the distinction to be drawn between reputation and good character, that the facts of this case reveal the circumstances of the offender to be, as Hayne J observed in Ryan v The Queen (2001) 206 CLR 697, “Janus like”. That is, as his Honour explained, that an offender has done good things in the past, is well reputed in the community etc, may bear two competing aspects. His Honour gave the example of the Minister of Religion who was respected by his parishioners, but as such as able to secure the trust of them and his victims, because he is thought worthy of respect. His Honour rejected the submission in that matter that such a situation must lead to the conclusion that prior good character or reputation must be seen as a mitigating factor. The submission made to the High Court to that effect, he observed, “fails to recognise that character and reputation may intersect the purposes of criminal punishment in more than one way [144]”. Previously in the judgment his Honour pointed out that prior good character and/or reputation may have little or no relevance in sentencing for particular kinds of offences, or where repeated offences taken place over a long time. As his honour said “no absolute rule of general application can be adopted” [143].

79.In both defence and Crown submissions attention was drawn to the distinction the may be drawn between reputation and character.  The Crown draws the distinction that the accused may have been of good character before the offending, but since the offending the evidence of his achievements is to be regarded more as evidence of good reputation, rather than good character.  Whilst there can be properly drawn a distinction between reputation and character, as discussed by Justice Basten in the decision of Kenny, referred to in the defence submissions ([2010] NSWCCA 6 – at [6], [12]), this is not a case, as I said earlier, where the accused used his reputation or office as an opportunity to commit the offences, unlike a priest sexually assaulting children to whom he should minister, rather than molest. Justice Howie in Kenny acknowledged that financial loss, loss of profession, etc may be forms of extra curial punishment, but public humiliation without more should not give rise to mitigation of sentence.  He did say, however, that there may be “an exceptional case”, where public humiliation may have some physical or psychological effect on the person to be taken into account “as additional punishment” (Kenny at [49]).  Here, that observation has some validity and weight, but is not decisive. 

80.I appreciate as I have already noted that the victims clearly see this matter somewhat differently, and their viewpoint is entirely understandable.An objective assessment cannot bring the court to conclude that the offender exploited his position as a barrister and as a professional colleague of his mentor for the purpose of offending in the manner revealed.  The totality of the evidence reveals a situation far more complex than that simple assertion. 

81.Ultimately, I have concluded that good character and good reputation, as demonstrated by the character evidence, sheds light upon the character of the offender, both prior to and subsequent to the offending, as reflected in the performance of his public responsibilities and his treatment of others, such as the absence of any violent or harmful characteristics outside this offending, as well as  his concern for others and his general diligence and honesty.  The learned Prosecutor had conceded, however viewed, that the ‘character/reputation’ evidence was “powerful”.  These are relevant mitigating matters to be taken into account in this matter, noting of course that he has been able to  take advantage, but not consciously, upon the delay in his criminal conduct being reported to the authorities.  Reforming oneself is a matter of credit, not criticism. 

82.In the context of these submissions I accept that the offender has demonstrated his rehabilitation and the fact that he is a very low risk of reoffending and presents no practical risk to any particular individual or other members of the community.  I accept from the evidence of his various referees and the objective facts relating to his professional achievements and his personal life, including his stable family circumstances, that he has sought to redeem himself, even if he has not done so consciously, having it would seem, one way or another, swept  out of his mind his conduct towards the victims. 

83.It is submitted, and I accept that it is so, that he has exhibited clear and genuine remorse, not just for his own exposure, but for the victims and their family, by his solicitations to the first victim during unregarded moments, admissions and his pleas of guilty.  I accept that he is genuinely ‘shocked’, in a positive way, by the disclosure in the Victim Impact Statements which were read to him by the psychologist.  I appreciate the concern of his victims that they thought that they were required to give evidence but, unfortunately, the request for them to give evidence was an incident of a process where the offender was charged with more serious charges which were not proceeded to full prosecution.

84.It is also submitted by the defence, which submission I accept, that the offender’s inevitable loss of standing and employment as well as the extensive public opprobrium to which he has been subjected, is a relevant matter to be taken into account in assessing the appropriate punishment to be imposed by the court.  Whether it might be categorised as ‘extra curial’ punishment, or rather one of the many factors to be taken into account in sentencing the offender, is to my mind somewhat a matter of semantics.  The fact is that the offender has suffered a deserved spectacular fall from grace which has wrought upon him embarrassment, shame and humiliation in the full public gaze which has been more extensive than would be suffered by other offenders charged with similar offences.  Of course, this must be expected in a situation as unique as this, but it is still a relevant matter to be taken into account in assessing the extent of punishment the Court should inflict upon the offender.  This shame and humiliation has led to, as the character  witnesses have made clear, the isolation of the offender from his community and from organisations to which he was deeply attached.  It has brought an end to his life and lifestyle as he knew it and has had a considerable impact upon his family, who have committed no crime, but must share his shame which no doubt causes him considerable distress.

85.There has been with his fall from grace considerable financial loss, at an age when he may have expected his career as a judicial officer to continue for another decade, being favourably remunerated and bolstering his entitlements on retirement.  He has lost his occupation and his means of income, as well as his connection with those with whom he may have enjoyed social contact.  Loss of self-respect, the suffering of disgrace and humiliation, loss of standing in the community, professional position and livelihood, are all necessary impositions that he must endure, but they nevertheless reflect penalties that are not divorced from this sentencing exercise.  There has been great loss to the primary victims too, particularly the first victim, and his parents who are victims as well.  But I cannot reward those losses by sentences that do not take into account all relevant factors. 

86.Another matter that was raised with the Court by the learned Senior Counsel for the offender was consideration of the principles discussed in the decision of Verdins [2007] VSCA 102, at [32]. The relevant passage in that judgement‘ reformulated’ the dicta of the decision of Tsiaris, an earlier decision of the Court of Appeal, relating to the relevance of “impaired mental functioning” in sentencing, whether temporary or permanent. 

87.Although the offender has a history of recurring depressive symptoms. He explained some of his inappropriate conduct to the father of the victim as related to pressures of work and depressive symptoms.  With regard to the offending conduct it is not submitted that all the matters identified in [32] of Verdins applied.  It is specifically submitted on behalf of the offender that imprisonment presented a serious risk of a significant adverse effect on the offender’s mental health, which may be a factor tending to mitigate punishment.  Related to that submission, which I accept, I conclude that the mental state of the offender may have a bearing on the sentence imposed or the conditions in which it would be served and, related to the above, the condition of the offender at the time of sentencing (or its foreseeable recurrence) may mean that a particular sentence will weigh more heavily on this offender than it would on a person in normal health.  I appreciate Mr Hill QC in his skilled address, only relied upon sub paragraph 6 of [32] from Verdins.  But my reflection upon his submissions, on the evidence I accept, suggests to me that matters in sub paragraphs 2 and 5 also have some application. 

Conclusion

88.In sentencing the offender I am to have regard to the ‘totality’ of the offending, in the manner generally discussed by the majority in Pearce v The Queen (1998) 194 CLR 610, at [45], and widely recognised as limiting the complete concurrency of sentences for separate offences (even though connected in time). Where the number of offences increases the totality of the criminality that increases the total sentence to be imposed.

89.In these matters terms of imprisonment are required, in the context of the maximum penalties and all relevant matters taken into account. 

90.In assessing the matters to be taken into account in fixing terms of imprisonment, in the context of the need for a ‘declaration’ pursuant to s 6AAA Sentencing Act, I take into account that the pleas of guilty, entered at the Magistrates Court, were entered at the first reasonable opportunity.  They had very high utilitarian value, requiring no evidence to be called by the prosecution, in a matter where, despite the presence of supporting evidence for the complainants, the prosecution case was heavily reliant upon the individual truthfulness and reliability of the victims to prove the particular charges alleged.  The prosecution case was not ‘weak’, but would have been constrained by directions required in the absence of direct corroboration and the difficulties arising by delay in complaint.  The offender assisted the prosecution by his admissions and conduct, both before and after arrest.  His pleas of guilty are evidence of contrition and remorse.  They clearly are, in the context of the requirements of the section, valuable in reducing the sentences otherwise required ‘but for’ the pleas of guilty. 

91.I have concluded that the totality of the terms of imprisonment should not exceed the period of three years imprisonment.  I have concluded that the terms of imprisonment should be wholly suspended.  In this regard I note decisions of the Victorian Court of Appeal that I have been provided, such as DPP v Carter (1997) 1 V R 601 (at 607-608), per Winneke P., and DPP v Anderson [2005] VSCA 68 (at [53]), per Eames JA. The sentencing of the offender to reflect the above must have regard to ss 7, 9 and 27 Sentencing Act 1991. In determining that terms of imprisonment that I must impose be wholly suspended, I have had particular regard to s.27(1A) of the Act.

92.Mr Cooper, I am obliged to tell you that you will be convicted and sentenced to terms of imprisonment, but that you will not have to serve those sentences immediately.  However, if you commit an offence punishable by imprisonment, either in Victoria or elsewhere, during the period of the suspension, then you may be brought back to be further dealt with and, absent exceptional circumstances, will be required to serve the suspended sentence. 

Orders

93.In respect of each charge you are convicted and sentenced as follows:

Charge 1 to 18 months imprisonment
Charge 2 to 12 months imprisonment
Charge 3 to 2 years imprisonment
Charges 4 and 5 to 18 months imprisonment
Charge 6 to 18 months imprisonment
Charge 7 to 12 months imprisonment
Charge 3 shall be the base sentence.  I make the following orders for cumulation: three months of the sentence on Charge 1; four months of the sentence on Charge 6; and five months on the sentence on Charge 7 are each to be served cumulatively on Charge 3 and upon each other.  The total effective sentence is three years imprisonment, which is wholly suspended for a period of three years. 

94.Section 6AAA of the Sentencing Act 1991 requires me to state the total effective sentence and the non parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to four years and three months imprisonment with a non parole period of two years and nine months.

95.I make an order pursuant to s.464ZF of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping of the mouth. I am obliged to tell you that if you resist the taking of the sample, reasonable force may be used in order that a sample may be obtained. I have made the order for the reasons of the seriousness of the offending and that the granting of the order is in the public interest.

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