DPP v Cook, Edward (a pseudonym)
[2015] VCC 397
•12 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWARD COOK (a pseudonym) |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2015 | |
DATE OF SENTENCE: | 12 March 2015 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2015] VCC 397 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Indecent assault contrary to Crimes (Sexual Offences) Act 1980 – historical sexual offences.
Sentence: Total effective sentence of three years and eight months with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Dipietrantonio | Office of Public Prosecutions |
| For the Offender | Ms K. Kothrakis | Doogue O’Brien George |
HER HONOUR:
1 Edward Cook,[1] you have pleaded guilty to eight charges of indecent assault against your biological daughter. The offending occurred between 1 January 1982 and 31 August 1986. At the time of the offending you were between 39 and 44 years old and your daughter was between 9 and 14 years old. The maximum penalty for indecent assault, as applicable at the time of offending, was five years imprisonment. You pleaded guilty at the committal mention stage.
[1] Edward Cook is a pseudonym.
2 The plea on your behalf was conducted on the basis of the facts contained in the Summary of Prosecution Opening, which was tendered by the prosecution as Exhibit 1, and I sentence you on the basis of the facts set out in that statement. These facts may be summarised briefly as follows.
3 You and your wife separated in 1980 and you then gained sole custody of your daughter. At the time of the offending you worked long hours as a truck driver making deliveries. Your daughter would accompany you on these deliveries and fall asleep beside you. On one occasion during such deliveries, you fondled her breast area under her shirt while she was asleep. She woke up but pretended to be asleep and you continued fondling her. This is the subject of Charge 1. On the same occasion, your hand went under her underpants and you touched her vagina. This conduct is the subject of Charge 2. The offending continued for about 20 minutes before she pretended to wake up.
4 The offending the subject of Charges 3 and 4 occurred at home on one occasion on a night before her 11th birthday. On that occasion, she went to your bed for comfort after a bad dream and woke to find you fondling her breasts with both hands under her night clothes. This conduct is the subject of Charge 3. On the same occasion you touched her vagina with your hand and massaged her clitoris. This conduct is the subject of Charge 4. Your daughter pretended to wake up and asked why you were doing this to her and you told her that if she continued to come to your room at night this is what would happen. The next day when she asked you about what occurred the night before, you referred to a biblical story about Cain and Abel and their wives.
5 Charges 5 and 6 concern further indecent assaults on one occasion at home when she was 13 years old. She came to your bed when she had trouble sleeping. When you thought she was asleep, you fondled her breasts. This is the subject of Charge 5. You then removed her underwear, moved her legs and digitally penetrated her vagina with one finger and massaged her clitoris. This is the subject of Charge 6. Your daughter stated that the type of offending detailed in Charges 1 to 6 would occur on a regular weekly basis.
6 Charges 7 and 8 concern conduct at home one night in winter before her 14th birthday. Your daughter came to your bed and went to sleep. When you thought she was asleep you removed her night gown and dressed her in a ladies' black silk nightgown. You removed her underwear, pulled the nightgown down and rubbed your penis against her vagina through the gown. This conduct is the subject of Charge 7. You then pulled up the nightgown, spread her legs and tried to penetrate her vagina with your penis. Your daughter pretended to wake up and left the room. This is the subject of Charge 8.
7 Your daughter disclosed the offending to a psychologist when she was in her twenties. At your daughter’s request, you attended a counselling session and she confronted you with her allegations. You did not deny your conduct and did not show any remorse nor apologise. You explained your conduct on the basis that it was “to show her that I loved her”.
8 Your daughter reported the sexual abuse to police in May 2013 and completed her statement in November 2013. In early December 2013, your daughter rang you and recorded the conversation. During the call you agreed that in talking to the psychologist you admitted that your conduct was wrong. You told your daughter that your thinking may have been “warped” and that you deeply regretted that what you did caused her trouble.
9 You were arrested in March 2013 but during the record of interview you denied abusing your daughter. However, you pleaded guilty at the first committal mention to eight counts of indecent assault.
10 Your daughter provided a lengthy victim impact statement dated 13 February 2015, which was read out in court in accordance with her wishes, and which was tendered by the prosecution as Exhibit 2. The statement sets out the far-reaching effects that your offending has had on her life, the lives of her children and those around her. In essence, you took advantage of a vulnerable child who lived alone with you. You groomed and manipulated her and deprived her of the protection that she needed. She said she had nowhere to turn for help and was consumed by rage, which she took out on her pets. She distrusted all adult males and feared all adult women. She was unable to concentrate at school. She is still haunted by shame over what you did to her and takes out her anger verbally on her own children.
11 She continues to experience symptoms of post-traumatic stress disorder, including feelings of depression, fear, anxiety and helplessness, for which she takes medication, and she also takes medication to help her sleep. She wakes up hysterical at times and checks to see that her children are safe. She has felt psychologically neutered by your abuse of her, has no self-esteem, no self-confidence, has trouble trusting others, finds it very difficult to socialise, and has lived quite a secluded life. Her debilitating anxiety and depression, as well as her difficulty socialising at work, have made it impossible for her to remain in the workforce. She found the process of talking to police overwhelming and experienced panic attacks. She has had psychological counselling for years at great expense and has taken anti-depressant and anti-psychotic medication for years as a result of the abuse. These medications have had difficult side-effects. She struggles to get through many days and finds it difficult to feel positive about her life.
12 Counsel for the prosecution submitted that although a suspended sentence is available, an immediate custodial disposition is warranted in your case. She submitted that general deterrence, just punishment, and denunciation were of particular significance in this case, as you committed a gross breach of trust as the father and sole carer of your child. This was an aggravating feature of your offending, as was the extent of the offending, which comprised eight charges of indecent assault on four occasions over four and a half years, and included offending which occurred in the family home when your daughter came to you for comfort. In addition, two of the acts were penetrative, and must be viewed as being serious examples of the offence of indecent assault. Furthermore, your conduct was motivated purely by sexual gratification, there was a very substantial difference between your age (39) and your daughter’s age (nine) when the offending commenced; and you treated your daughter as your lover.
13 Counsel for the prosecution submitted that your conduct has had a very significant impact on your daughter, as set out in her victim impact statement, and that she, as well as you, have lived through the delay until you acknowledged your offending and were charged.
14 In relation to remorse, the prosecution says that you stayed silent in the counselling session at which the allegations were put to you, and you did not apologise. In addition, it was submitted that your comments during the record of interview about your offending, for example, that it was normal because she wanted physical contact and did not object to your conduct, and, that when she was 13 you felt that she was your lover and would not suffer engaging in sexual exploration with someone who loved her, and rationalising conduct after she turned 13 as not being inappropriate, demonstrated a worrying lack of insight into your conduct.
15 It was conceded that there could be some moderation in terms of the consideration of specific deterrence. It was submitted that an immediate custodial disposition is warranted. Counsel for the prosecution referred me to the case of Patrick v R 2014 VSCA 89, which concerned an appeal against conviction, in respect of six charges of indecent assault and one charge of gross indecency imposed upon a father, in relation to offending against his daughter beginning when she was eight years old. According to the table set out in paragraph 1 of the judgment, the offender was sentenced, after a trial, to a total effective sentence of six years, three months, with a non-parole period of four years.
16 Your counsel emphasised some of the factual context of your offending. You have had few relationships in your life and the first and foremost important of those was with your wife, whom you married at age 29, and whom you loved greatly. After your daughter was born, your relationship with your wife deteriorated and you had no intimate contact. She left you 8 years later. By the age of 8 your daughter was left in your sole care. Your counsel relied on a psychological report, which was tendered as Exhibit A, to the effect that the offending occurred in the context where your daughter was the closest person in your life, and that you employed “cognitive distortions” to enable the offending to commence and to continue, in the mistaken belief that such behaviour was not causing her harm. You did not dispute the occurrence of the individual instances which constitute the eight charges but said that you do not have a clear memory of the events, nor of the duration.
17 Your counsel pointed to a number of matters in mitigation. You have no prior convictions or findings of guilt, nor any subsequent matters. Character references have been produced. You pleaded guilty at the committal mention because you did not want to put the complainant through the trial process. She submitted that your remorse was demonstrated by the fact that you admitted your wrongdoing ten years ago when you attended a counselling session at your daughter’s request. Further, in the pretext call that was made on 3 December 2013, you again acknowledged your conduct, apologised and offered to do what you could to make it right.
18 In relation to delay, it was pointed out that nearly 30 years have passed since your offending and you have not reoffended. In relation to your personal circumstances, your counsel noted that you have a history of hypertension and thyroid cancer since 1990. Your thyroid cancer led to permanent hearing loss in one ear. You have had surgical removal of melanoma in 2006. You were diagnosed with prostate cancer in 2013 but there is no current plan for surgery.
19 Finally, your counsel relied on the psychologist’s conclusion that you do not suffer any mental health conditions and currently pose a low risk for sexual re-offending, which is further lowered by your self-reported lack of arousal in the last 12 years.
20 Your counsel also relied on two letters which were tendered on the plea as Exhibit B and Exhibit C. The first is a letter from your brother, dated 7 January 2015, which outlines that until recently you did babysitting for your daughter’s children and have been a loving parent, grandparent and uncle and that your offending is out of character. The second is a letter dated 13 January 2015, from a friend who has known you for many years and speaks highly of your trustworthiness, integrity and generosity.
21 Your counsel noted that your offending conduct was confined to one period in your life and ended nearly 30 years ago, and urged me to consider the alternatives to an immediate custodial disposition, including a suspended sentence and/or a lengthy Community Corrections Order, although it was suggested that as you have been assessed at low risk of sexual reoffending you are unlikely to be required to undertake a sex offender’s program. Your counsel also distinguished the sentence in Patrick’s case on the basis that the sentence there was imposed after a trial.
22 I turn to your personal circumstances. You are 72, were raised in a loving home with a number of siblings. You left school at age 14 and worked in an office and on a farm. You worked as a truck driver until your recent retirement. You have no prior convictions and no subsequent matters. You have no history of mental illness. You drink only in moderation. I note your medical conditions as I have already outlined. You live alone and spend a lot of time fishing but have some longstanding friends.
23 The psychologist carried out psychometric testing and formal risk assessment using two tools: the STATIC-99 and the Risk of Sexual Violence Protocol (RSVP). According to the first tool, you had none of the risk factors associated with sexual violence and placed in the low risk category relative to other male sexual offenders. According to the second tool, you presented with a number of partially present factors. These include chronicity of sexual violence and psychological coercion; serious problems with self-awareness (that is your limited insight); problems with non-intimate relationships (including your estrangement from your daughter and her family); and problems with treatment. The psychologist concluded that you were not suffering from any mental disorder during the period of your offending.
24
The psychologist concluded that you currently pose a low risk for sexual re-offending, which is reduced further by your report that you have had no sexual arousal in the last 12 years. Her opinion was that your offending “occurred in the context of [you] being a man with limited sexual experience with a tendency to keep [your] emotions private”, that you had more difficulty dealing with your wife’s rejection of you than you were willing to admit, that your daughter was the focus of your life and the person you were closest to. With no other avenues of sexual gratification, she wrote, you eventually turned to your daughter in order to meet your need for emotional and intimate closeness. Despite knowing that your behaviour was wrong, she wrote, you justified your action “by adopting the cognitive distortions that your daughter was consenting, that you were causing her no harm and that you were assisting her to explore her sexuality in a 'safe' environment”. You believed that because you continued to have a close relationship with your daughter for
30 years after the offending, that your behaviour had not been harmful.
25 The psychologist noted that, given your medical conditions, you would require close monitoring in custody. She felt that you would benefit from offence specific psychological treatment in order to address the cognitive distortions you have employed, and to help you understand the harm that your form of offending can have on the victim.
26 There are a number of aggravating features of your conduct. The first is the gross breach of trust that these charges represent. You were the father and sole carer for your daughter during the years of the offending, and lived alone with her. Your role was to love and protect your young daughter from all harm, yet you told her she could expect this kind of behaviour from you if she came to you seeking reassurance or comfort at night.
27 The second is the long period of offending, which robbed your daughter of precious years of normal childhood and early adolescence. The third is your daughter’s age at the time the offending commenced, that is, she was only nine years old. The fourth is that you used her as an object for your sexual gratification, in effect using her as a substitute for an adult female sexual partner. Finally, two of the charges, Charges 4 and 6, involve digital penetration, which places those offences at a higher level in the range. The final charge, Charge 8, involves non-penetrative rubbing of your penis against her vagina after you had undressed your daughter and redressed her in a long black silk and lace ladies nightgown while you thought she was asleep. Your daughter stated that you rubbed your penis against the lips of her vagina and she then pretended to wake up, interrupting your conduct. This conduct represents an escalation of your offending as your daughter grew, and I consider that the conduct in this offence stands at the higher end of the scale of seriousness for an offence of this type.
28 For the reasons outlined above, I consider that, overall, your moral culpability is very high indeed. I consider that the offending is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment.
29 The sentence I impose must properly reflect both the mitigating factors on the one hand, and the need for general and specific deterrence on the other. The importance of general deterrence lies partly in the fact that such crimes are difficult to detect and often only come to light after many years after the victims reach adulthood. More broadly, others who may be inclined to offend this way must understand that their conduct will be condemned by the court and that they will receive harsh punishment.
30
In relation to specific deterrence, your age and the fact that you suffer from a number of medical conditions are relevant factors. You have prostate cancer but are not currently undergoing treatment. You also have diverticular disease and hypertension which are being treated. You have limited hearing in one ear after thyroid cancer. I note the psychologist’s opinion that you are at low risk of reoffending. However, I do not accept her conclusion that any risk of reoffending is lowered further due to your lack of arousal in the past
12 years, as such a conclusion is based on your self-reporting, and there is nothing in the report to establish the validity of reliance on such self-reporting.
31 On the other hand, you have no prior convictions at all and there has been no subsequent offending. You pleaded guilty at the earliest opportunity and deserve a significant discount for the utilitarian value of the plea in avoiding the need for a trial. There is also some evidence of remorse in your conduct in attending a counselling session 10 years ago at your daughter’s request and admitting your wrongdoing in that context.
32 You again acknowledged your wrongdoing in a pretext conversation with your daughter in December 2013, apologised to her and offered to do what you could to making things right. Your counsel submitted that you have shown genuine remorse. I accept that this is the case to an extent, but consider that it is somewhat undermined by your limited insight into the wrongfulness of your conduct, as demonstrated by some of your answers in your record of interview and in your discussions with the psychologist.
33
I note that the offence of indecent assault (non-penetrative) committed against a child under 16 years is a Class 2 offence. You have pleaded to 6 Class 2 offences. Indecent assault (penetrative) committed against a child under
16 years is a Class 1 offence. However, pursuant to s.34(3) of the Sex Offenders Registration Act 2004, where two or more offences arise from the same 24 hour period, they are to be treated as a single offence. Accordingly, for the purpose of registration, you have pleaded guilty to 2 Class 1 offences (Charges 3 & 4, and Charges 5 & 6) and 2 Class 2 offences (Charges 1 & 2, and Charges 7 & 8). Registration is mandatory and the reporting period is life.
34 Indecent assault is a sexual offence for the purpose of the serious sexual offender provisions of the Sentencing Act 1991. If you are sentenced to a term of imprisonment on Charges 1 and 2, you are to be sentenced as a serial sexual offender on Charges 3 to 8. This brings into operation the provisions of ss.6D, 6E and 6F of the Sentencing Act 1991. In sentencing you on the charges on the indictment, the Court must regard the protection of the community as the principal purpose of sentencing, and in order to achieve that purpose, the court may impose a longer sentence than that which is proportionate to the gravity of the offences, considered in the light of their objective circumstances. I note, however, that in this case the Crown is not seeking a disproportionate sentence and I do not propose to impose one. On the other hand, I consider that there should be some cumulation, which in turn requires consideration of totality.
35 The sentence I impose today is required to denounce your conduct, to punish you adequately for it, to give proper effect to the principles of general and specific deterrence, to protection of the community, and to balance all of these factors against the need to impose a sentence which facilitates your ongoing rehabilitation.
36 Would you please stand.
37 You are convicted of all charges. On Charge 1 of indecent assault, you are sentenced to imprisonment for 6 months. On Charge 2 of indecent assault, you are sentenced to imprisonment for 9 months. On Charge 3, indecent assault, you are sentenced to 6 months imprisonment. On Charge 4, indecent assault, you are sentenced to 2 years’ imprisonment. This is the base sentence. On Charge 5, indecent assault, you are sentenced to 6 months’ imprisonment. On Charge 6, indecent assault, you are sentenced to 2 years’ imprisonment. On Charge 7, indecent assault, you are sentenced to 12 months’ imprisonment. On Charge 8, indecent assault, you are sentenced to 12 months’ imprisonment. As I have said, the sentence on Charge 4 is the base sentence.
38 I order that 12 months of the sentence on Charge 6, 3 months of the sentence on Charge 7 and 3 months of the sentence on Charge 8 be served cumulatively upon one another and upon the base sentence of 2 years, which is imposed on Charge 4. That results in a total effective sentence of 3 years and 6 months imprisonment, and I order that you serve a period of 2 years before you become eligible for parole.
39 I note that I have sentenced you as a serious sex offender in relation to Charges 3 to 8, and I order that this fact be noted in the records of the court.
40 By operation of the Sex Offenders Registration Act 2004, you are subject to the reporting conditions under that Act for life. I will supply you with a document which sets out your obligations under that Act with which you must comply.
41 Application was made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth, or a blood sample. Having regard to the seriousness of the circumstances of the offending, I find that the granting of the order is in the public interest and that you have consented to such an order. I make the order and will sign it shortly.
42 I am required to inform you that if at the time you are requested to supply a sample of your DNA by scraping from the inside of your mouth, under supervision by an authorised member of the police force, then the sample will be taken in that way. But if, when requested by the officer to provide the sample in that way, you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample, and to use reasonable force to obtain that blood sample.
43 I indicate pursuant to s.6AAA of the Sentencing Act that, but for your plea of guilty, I would have imposed a sentence of 6 years imprisonment.
44 I will sign the orders. Are there any other matters?
45 MS MOLETA: No, Your Honour.
46 MS KOTHRAKIS: No, Your Honour.
47 HER HONOUR: Thank you. Before I sign the orders I will just have my Associate prepare them and get you to check them in draft form, to make sure the calculation is correct. Have you checked the calculation between you, as to whether that's correct?
48 MS MOLETA: Yes, Your Honour.
49 MS KOTHRAKIS: I've checked them, yes Your Honour.
50 HER HONOUR: Thank you. Take a seat, Mr Cook. Sorry, we're maybe waiting for you while you're waiting for us. Is everything all right with the orders?
51 COUNSEL: Yes, Your Honour.
52 HER HONOUR: Thank you. Does Mr Cook have a support person in court?
53 MS KOTHRAKIS: Yes he does, Your Honour.
54 HER HONOUR: All right. Shall I adjourn briefly so that person can talk to him briefly before he's taken away?
55 MS KOTHRAKIS: Thank you.
56 MS MOLETA: As Your Honour pleases.
57 HER HONOUR: Thank you.
58 MS KOTHRAKIS: As Your Honour pleases.
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