R v Cooke (a pseudonym)
[2021] ACTSC 249
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cooke (a pseudonym) |
Citation: | [2021] ACTSC 249 |
Hearing Date: | 1 September 2021 |
DecisionDate: | 24 September 2021 |
Before: | McWilliam AJ |
Decision: | See [65] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Territory offences – commit an act of indecency on a person under the age of 10 years – where the offender was in a position of trust – where the offence was not isolated but other charges not laid – consideration of s 34B of the Crimes (Sentencing) Act 2005 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT) s 61 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 34A, 34B, 35, 46D |
Cases Cited: | Corby v The Queen [2010] NSWCCA 146 McLeod v The Queen [2018] ACTCA 59 |
Parties: | The Queen (Crown) Ernie Cooke (a pseudonym) (Offender) |
Representation: | Counsel K Lee (Crown) B Rutzou (Offender) Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) |
File Number: | SCC 159 of 2021 |
MCWILLIAM AJ:
On 6 July 2021, the offender, Mr Ernie Cooke (a pseudonym), entered a plea of guilty to the charge that he committed an act of indecency on a person under the age of 10 years, in contravention of s 61(1) of the Crimes Act 1900 (ACT) (the Crimes Act).
The offence carries a maximum penalty of 12 years’ imprisonment.
The facts
A statement of agreed facts was before the Court, from which the following factual summary is taken.
The offender had been in a de facto relationship with the child victim’s mother since 2016. They lived together in the ACT with their young daughter as well as the child victim, who was the mother’s eldest child from a previous relationship. Although the offender was not the biological father of the child victim, he was in the position of a stepfather, and the child victim called the offender “daddy”.
The conduct that is the subject of the offence occurred on 26 April 2021, while the offender was at home looking after his own daughter and the child victim. The child victim’s mother was visiting her father in a local nursing home.
It was reported by the child victim in the evening, after the mother had returned home. The child victim was being bathed by her mother and said words to the effect of, “daddy licked his finger and touched my giney today”.
When confronted, the offended first denied but later admitted to the mother that he had touched the child victim’s vagina. He said that he did not touch her in a sexual way, and it was not done on purpose. In essence, the offender described the conduct as occurring when he was trying to get the child victim to divert her attention away from her iPad. He then stated to the mother that he has pulled off the child victim’s pants and underwear, licked his finger, and touched her vagina. He said this was a “one-off.”
During a police interview conducted the following day, the child victim stated that the offender had touched her “giney” with a finger when she was on her iPad, lying on her bed in her bedroom. He had removed her pants and underwear, saying nothing at the time of such conduct. The child victim stated that she told the offender, “Stop. I don’t like it”. She said her vagina hurt and it made her feel sad and that she later told her mum about it.
The victim disclosed to her mother and to police the following day that the offender had touched her “giney” on more than one occasion in the past. The conduct the subject of the offence was the only time she had told her mother about it happening.
The offender also participated in a police interview, during which he stated the following:
(a)The victim was using her iPad on her bed in her bedroom.
(b)When her screen time came to an end, the victim did not want to give up her iPad.
(c)He started play fighting and “rough housing” the victim.
(d)During the course of this “rough housing” he licked his finger and put it in the victim’s ear. He also stuck his tongue in her ear.
(e)During the course of this, the offender was pulling on the victim’s legs and pulled off her socks. He then pulled her pants and underwear down in one motion, exposed her bottom, licked his finger, and touched her vagina with the finger he had licked.
(f)The victim was bent over the bed at the time and on her stomach.
(g)The offender said he touched the victim’s vagina to get a reaction from her and to lift her up from behind so that she was standing on her bed.
(h)The offender said his finger was on the victim’s vagina for about 20 seconds.
Sentencing considerations
When considering the appropriate sentence for an offender, the Court is to have regard to the relevant sentencing objectives set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The first purpose listed (but not to be given any greater weight than any other purpose, as expressly stated in s 7(2),) is:
to ensure that the offender is adequately punished for the offence in a way that is just and appropriate.
Other sentencing purposes listed in s 7 may be summarised as general deterrence, specific deterrence, the protection of the community, the promotion of rehabilitation, accountability by the offender, denunciation of the conduct of the offender, and recognition of the harm done to the victim of the crime and the community.
The Sentencing Act includes various mandatory considerations in furtherance of those objectives. They include considerations under s 33 of the Sentencing Act, as discussed below.
The circumstances of this offence mean that there are two further mandatory sentencing considerations arising under the Sentencing Act. Section 34A of the Sentencing Act provides:
34A Sentencing—sexual offences against children
For a sexual offence against a child, a court—
(a)must sentence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing; and
(b)must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender's good character enabled the offender to commit the offence.
That section must now be read with s 34B of the Sentencing Act, which came into force on 12 August 2021. It deals with family violence offences and requires the Court to consider “the nature of family violence and the context of the offending”. The section then lists a number of mandatory considerations, discussed below to the extent relevant.
Finally, under s 10 of the Sentencing Act, before a court may sentence an offender to imprisonment for all or part of the term of a sentence, the Court must first be satisfied that no other penalty is appropriate having considered possible alternatives.
The offender was not eligible for a referral to restorative justice because his victim is less than 10 years old. There was no reason to defer the sentence and it was uncontroversial that alternatives to imprisonment, such as a good behaviour order or community service, would not properly reflect the gravity of the offence or achieve the relevant sentencing objectives. I am therefore satisfied that a sentence of imprisonment is the only appropriate penalty. The two key issues are: how such a sentence is to be served, and for how long.
The proceedings and the plea of guilty
The offender was arrested the day after the offence occurred, on 27 April 2021. He was granted bail the following day and has therefore spent one day in custody.
He pleaded guilty on 6 July 2021 in the Magistrates Court. That was the sixth mention of the matter (although three of those mentions were bail variations). It was also in advance of a hearing and saved the public expense of a trial. The conduct of a trial would have been an extremely stressful experience for the child victim and her mother. The offender is entitled to recognition of that guilty plea, having regard to its utilitarian value: see ss 35(2) and 35(3) of the Sentencing Act.
As to the consequent discount applicable to the ultimate sentence, the offender had made some admissions to his de facto partner and to police on the night of the offending. The admissions as to the actual conduct were consistent with what the child victim had reported, noting that the complaint was made contemporaneously, on the day the offending conduct occurred. Having also had regard to the other matters set out in ss 35(2) - 35(4) of the Sentencing Act, some of which are discussed in more detail below, I assess the appropriate discount at just shy of 18 per cent, reflecting the strength of the Crown case.
Objective seriousness
Starting with some general principles, the sentencing Court must consider where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the worst category: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
It is of “considerable significance” that the Court assess the nature of the offence and the character of the particular act of indecency: R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [31], per Fullerton J, with whom Spigelman CJ and Barr J agreed.
That task is an objective one. It is determined without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
The after-effects of offending are considered separately in the context of the subjective factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].
In relation to the objective seriousness of the present offence, I have taken into account the following matters.
First, in terms of the nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act) the conduct involved in the offence itself was one of the most serious examples of this type of offending, because it involved the offender touching the child victim’s vagina. The offender deliberately pulled the child victim’s pants and underwear down. The offender licked his finger before touching the child victim’s vagina, and he touched her vagina for about 20 seconds.
Second is the offender’s degree of responsibility for the commission of the offending (s 33(1)(i) of the Sentencing Act). The offender was the sole person responsible for the offending conduct. He must have understood the wrongfulness of this conduct.
As seen from what was set out above, the offender’s explanation for committing the offence (s 33(1)(v) of the Sentencing Act) was that this was “rough housing” which started out as a measure to stop the child victim from continuing to use her iPad. The offender maintains that the conduct was not sexual in nature and was not done for sexual gratification. This is relevant to the offender’s moral culpability.
Counsel for the offender submitted that there is a difference between sexual gratification and sexual connotation. While I accept there is such a difference, it does not apply to the circumstances for which this offender is being sentenced. I do not accept the submissions made by the offender that the conduct was not sexual in nature or done for sexual gratification. There is simply no context in which “rough housing” or an attempt to stop a child from using technology would give rise to the need to remove the child victim’s pants and underwear, let alone to expose her genitalia, lick his finger while she was bent over on the bed and touch her vagina for 20 seconds. On the contrary, I find the only reasonable inference for the Court to draw from the offender’s conduct is that it was for sexual gratification.
Third, the offending occurred in the child’s own bedroom, a personal and private location and one where she was most entitled to feel safe (s 34B(b) of the Sentencing Act).
Fourth, the child was 6 years old at the time. The offence in question covers an age range of 0 to 10 years and it has been said that the younger the child, the more serious the offence: R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42] and Shannon v R [2006] NSWCCA 39 at [28]. However, the Crown drew attention to R v NT [2017] ACTSC 69 (R v NT), where Penfold J observed at [18]:
The youth of the victim (between seven and nine years at the time of the offences) is an element of the particular offence and is recognised in the high penalty for offences of this kind against children under the age of 10. I do not consider, however, that the victim being towards the upper age limit for these offences reduces the impact of the offences; such offences may in fact be more damaging to a child who is aware of the enormity of the offences, and at risk of regarding herself as also culpable, than it would be to a much younger child.
Fifth, the offender’s knowledge of the victim’s circumstances (s 33(1)(d) of the Sentencing Act), in that the offender knew the victim was 6 years old and would plainly have been aware of her vulnerability by virtue of her age. Somewhat allied to this is the consideration of the age differential between the victim and the offender: see R v Hammer [2019] ACTSC 182 at [27] (Hammer) and Corby v The Queen [2010] NSWCCA 146 at [77]. There is an obvious and significant age differential, in that the offender was 39 years old at the time of the offence.
Sixth, the offending also constituted a breach of trust (s 33(1)(u) of the Sentencing Act). The offender was the victim’s de facto stepfather, and the offence occurred when the offender was looking after the victim. There was no other adult at home at the time the conduct occurred. It was by virtue of his position as a trusted close family member that the offence was enabled: see Hammer at [27].
Counsel for the offender sought to draw a distinction between touching and rubbing a child’s genitalia, with the former being perceived as less serious. In the present case, the “touching” was not brief and the conduct hurt the child victim. In respect of the hurt felt by the child victim, the Crown submitted that fact was relevant to s 33(1)(e) of the Sentencing Act. Counsel for the offender submitted that while there was evidence of pain, that did not amount to an injury. I disagree. The fact that pain may be temporary does not meant it does not constitute an injury. For example, if someone was punched in the face, a person may feel pain and also sustain a black eye. Each are separate injuries, even though the pain may be of less duration.
In any event, it is unnecessary to engage in the lawyers’ debate about the legal characterisation of the conduct here, in circumstances where the complainant is a child and may not have the command of language to appreciate and then communicate the difference. I accept the distinction might carry importance in other cases and may have some bearing when considering whether sentences imposed in other cases are comparable. However, in light of the duration of the conduct and the fact that the conduct hurt the child, the nuances between “touching” and “rubbing” carry little weight on the facts of the present offence.
Taking all those matters into account within the limits of the charge, I assess the facts as being above the medium level of objective seriousness.
Subjective circumstances
The offender was raised in NSW but in the Canberra region. He described his upbringing as normal and positive. He was never subjected to any physical or emotional trauma. He considers that he has always shared positive relationships with his immediate family members. He had previously been married, with that relationship lasting 14 years. His relationship with his most recent ex-partner lasted four years, before they separated following the current offence.
In the offender’s letter of apology to the Court, he described himself as a “proud dad” of two children: a five-year-old son with his ex-wife, and a two-year-old daughter with his former partner. He also describes himself as “step dad” to the child victim. He believes he has made the best of where life has taken him and “established a great family environment”. It is hard to reconcile that self-description with the conduct he inflicted on the child victim, who must plainly be regarded as part of that family and who referred to the offender as her “daddy”.
The offender’s attitude to the offending is problematic. In the Pre-Sentence Report (PSR) it is recorded that the offender only realised his actions were wrong after he realised he had physically hurt the victim. The author of the PSR expresses a view that while the offender “understands he physically hurt his victim, he does not seem to understand what other ramifications his actions may have had on his victim”.
A similar sentiment is expressed in the offender’s letter of apology to the Court, where he states that he now understands that he “misjudged” his conduct. To describe his behaviour as exhibiting a lack of judgment, which in retrospect he realised was wrong either demonstrates a lack of insight, or an ongoing dishonesty to himself about the true moral turpitude of the conduct. As the Crown submitted, there is a distinction between a person who is genuinely remorseful for the offending conduct and a person who is genuinely sorry they got caught.
Family violence offence matters
I have taken into account the matters listed in s 34B of the Sentencing Act and to the extent that they have already been referred to above (such as where the offending occurred and the fact that the offence involved a child), I will not repeat them. The offence is a serious family violence offence (as defined in the section), and the principles as to the nature of family violence, set out in the Preamble to the Family Violence Act 2016 (ACT), speak to the unacceptability of family violence in any form. Of particular significance here are the following words from Item 2 of the Preamble:
The Legislative Assembly also recognises [that]:
(a)…
(b)…
(c)children exposed to family violence are particularly vulnerable and the exposure may have a serious impact on their current and future physical, psychological and emotional wellbeing.
Victim impact statement
That consideration focuses attention on the impact to the child victim, and her family: s 33(1)(f) of the Sentencing Act. The victim’s mother gave a victim impact statement, which the Crown read out to the Court on her behalf. Parts of the contents of that statement have been paraphrased in what follows below.
Since the incident, the victim’s mother has felt broken, empty, and devastated. She spoke of taking the victim to the Child at Risk Heath Unit at the Canberra Hospital as an experience that will haunt her dreams for the rest of her life.
The victim loved and trusted the offender as her daddy; he had been the father in her life for 5 years. The impact this event will have on her life now as well as later, when she has the maturity to understand is significant. The impact that this will have on the child victim’s mental health and relationships she has with men for the rest of her life is also a matter of concern for the victim’s mother.
The victim’s mother gave an example of such an impact already, in that it was said the victim has become extremely protective to her little sister, often saying “I kept you safe when I was brave”. The victim has nightmares and understandably no longer feels safe sleeping in her bed. She has increased separation anxiety and is afraid to be alone with the men in her life, including her biological father.
This event has also damaged the victim’s mother emotionally and financially in so many ways. The victim’s mother states she has increased anxiety, often feels overwhelmed, unsafe and in a state of hyper vigilance just waiting for more bad news. She has mourned the loss of the life she had, the happy family and dreams she had are all gone, destroyed by these events. She has cried many tears and had many sleepless nights wondering why this has happened. She notes she had to sell her family home and move in with her mother. The offender’s conduct has impacted her in such a way that she missed her father’s final days of life and feels she has been robbed of the chance to grieve for her father. The victim’s mother has also missed weeks of work and changed her daily routine to rebuild a sense of security.
The victim’s mother stated she will never forgive herself for allowing the offender into their lives, nor will she ever trust anyone again. Indeed, the guilt felt by the mother permeates her entire statement.
The victim’s mother concludes in stating that the offender:
…took away so many things from our family but there is one thing he can’t take and that is the strength I’ve seen in my daughter. [The child victim] is my hero, at 6 years old [she] has stood up to her abuser and I just couldn’t be more proud of her.
It is clear that the impact of the offence on the child victim and her family has been profound.
Criminal history
The purpose in considering an offender’s criminal history is relevant in determining whether the offender’s behaviour was an uncharacteristic aberration or whether the offender has manifested, in his commission of the most recent offence, a continuing attitude of disobedience of the law: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. The offender was convicted and sentenced in NSW for a low-range drink driving offence in 2000. His licence was disqualified for three months and he paid a fine. I would characterise such criminal history as not having a material bearing on the present sentence.
However, the statement of agreed facts also records that the child victim disclosed to the police that the offender had touched her “giney” on more than one occasion in the past, and further that when the child victim’s mother asked if the offender had touched her vagina before, the child victim raised five fingers. While the Court is not sentencing the offender for conduct that occurred at any time before 26 April 2021, it was accepted by the offender that it could not be said that his offence was an isolated incident.
Character References
I have read each of the character references placed before the Court, which would otherwise be relevant to establishing the offender’s good character as perceived by people who may know the offender better than the snapshot presented to the Court. However, pursuant to s 34A of the Sentencing Act, a court must not reduce the severity of a sentence it would have otherwise imposed because of the offender’s prior good character, to the extent that that good character enabled the offender to commit the offence: see R v EN [2019] ACTSC 354 at [23]. That applies here, where a mother’s trust in the offender’s good character meant that a vulnerable person, her daughter, was left solely in the offender’s care.
Comparable Cases
Comparable cases will give some indication of sentencing practice (s 33(1)(za) of the Sentencing Act) and sentencing patterns, and I have had regard to the cases to which I have been referred by the Crown. Noting that all of those cases were before the introduction of s 34B of the Sentencing Act, the cases have been considered with a degree of caution, to ensure that to the extent any sentencing practice or pattern emerges, it reflects the present statutory considerations.
In R v NT, the offender pleaded guilty to ten acts of indecency involving a person under 10 years of age. Nine of the offences involved acts of indecency on a young person, covering conduct over five separate incidents. The victim was the offender’s granddaughter, and she was aged between 7 and 9 at the time of the offences. Six of these offences involved the offender touching the victim's clitoris and the outer parts of her vagina. The offender was sentenced in total to imprisonment for six years and six months, however it is a case that had many features different from the present offence. In addition to the conduct involving multiple occasions, the offender had some historic dishonesty offences on his record, had physical and mental health problems, showed remorse, and had suffered childhood sexual abuse. He received a 25 per cent discount for the offences disclosed by the victim, and just over a 33 per cent discount for offences disclosed by himself in recognition of his guilty plea and his disclosures.
In addition to R v NT, the Crown relied on R v KI [2019] ACTSC 292 (R v KI), where one of the offences included the offender touching his 3-year-old daughter’s vagina, at one point licking his finger to achieve some lubrication. The offender had been in custody, had shown genuine remorse, had been sexually abused in his childhood, and had received a 25 per cent discount for a guilty plea. He was sentenced to 20 months’ imprisonment.
The Crown also referred the Court to R v Fitzpatrick (Supreme Court of the Australian Capital Territory, Nield AJ, 25 June 2013), R v Anderson (No 2) [2020] ACTSC 98, R v Kelly (Supreme Court of the Australian Capital Territory, Murrell CJ, 28 April 2014), and R v Leonard Theodore Lam (No 3) [2014] ACTSC 362.
To these may be added two cases considered by Elkaim J in R v KI at [20], namely R v Girvan (Supreme Court of the Australian Capital Territory, Refshauge ACJ, 25 September 2013) and R v LE [2018] ACTSC 143 (R v LE). His Honour accepted both as very roughly comparable for the offences the subject of sentence in R v KI and as illustrating a sentencing pattern. I respectfully adopt the same approach, noting that the cases to which the Crown refers are broadly comparable, but as I have endeavoured to demonstrate in the brief discussion above, each case has its own distinguishing features and none of those cases are determinative of a particular sentence here.
Intensive Corrections Order
The legal representative for the offender made considered submissions regarding an intensive corrections order. He was assessed as suitable by the assessor in the PSR. However, such opinion was significantly caveated in the following way:
… [the offender] is residing in his caravan between two NSW locations. Whilst an interstate address is not an indication of unsuitability per table 46D of the [Sentencing Act], this Service cannot effectively supervise an ICO for an offender who resides in NSW. This is due to difficulties with administering the Order such as, conducting home visits. The fact that [the offender] resides in a caravan park, where young children are likely to also reside, is also a cause for concern given the nature of his current charge.
Section 46D of the Sentencing Act does permit the assessor to take into account the living circumstances and the personal circumstances of the offender. The offender’s current residential arrangements are plainly unsuitable for an ICO, even more so when regard is had to the nature of the offence and the lack of insight to which I have earlier referred. It was submitted that the offender would find other more suitable accommodation if an ICO were ordered.
Whether that is a realistic option is questionable where, having pleaded guilty in early July this year, the offender has not secured other accommodation in the interim period leading up to sentencing, when he was in the community and able to do so. I accept that may have been because the offender was hesitant to sign any residential tenancy lease in circumstances where he accepted that the impending sentence was likely to be one of imprisonment, but the difficulty is that the Court does not sentence on what hypothetically might come to pass and unstable accommodation that is interstate means that an ICO is inappropriate, in my view.
However, even if the accommodation issue is put to one side, when all the circumstances together with the other sentencing considerations set out below are assimilated, the conduct remains worthy of denunciation and I would not have considered an ICO as appropriately reflecting the gravity of the offence.
Other sentencing considerations
General deterrence and specific deterrence are obviously matters of importance for offences of this type. In respect of the latter, the PSR refers to the offender’s general risk of reoffending as low and an assessment of below average risk of sexual offending. The offender’s primary risk factors include his somewhat unstable accommodation and his attitude towards the offence, both of which have been considered earlier in these reasons.
I note that the deterrence objectives, denunciation and punishment are also relevant to the setting of any non-parole period: R v Simpson [2001] NSWCCA 534 at [64] per Spigelman CJ. I have taken those objectives into account in setting the non-parole period. I have also taken into account the offender’s rehabilitation in setting the non-parole, and consider that time with supervision and support will be of significant assistance.
I recommend the offender engage in a child sexual offending intervention, to assist with the development of greater insight in the offender’s attitude towards his current offence.
Sentence
I make the following orders:
(a) In respect of the offence of an act of indecency with a person under the age of 10 years (CAN 4406/2021), the offender is sentenced to 23 months’ imprisonment (reduced from 28 months), commencing on 24 September 2021 and ending on 23 August 2023.
(b) The non-parole period is 18 months, to commence on 24 September 2021 and expire on 23 March 2023.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam. Associate: Date: 30 September 2021 |
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